Act respecting labour standards Chapter IV - Larbour standards (Section 39.1 to 97)

Definitions

For the purposes of this Act, "psychological harassment" means any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee. For greater certainty, psychological harassment includes such behaviour in the form of such verbal comments, actions or gestures of a sexual nature.

Interpretation

This section defines what psychological harassment is. The definition must be approached within the specific context of the employer-employee relationship. In other words, what could not be considered harassment under other circumstances, may be considered harassment owing to the legal subordination relationship between the parties.

Vexatious behaviour must take the form of conduct, comments, actions or gestures which, in the case of the first paragraph, must be repetitive in nature, i.e. continuity over time.

The vexatious nature is generally gauged from the standpoint of the person experiencing the situation and who is reporting it, without regard for the harasser’s intentions. In the majority of cases, the assessment will deal with the nature, intensity and recurrence of the objectionable gestures, as well as their impact on the victim. The vexatious behaviour may be continuous in nature, demonstrable by the effect of the physical or psychological prejudices that link each of the gestures together1.

These incidences of behaviour, comments, actions or gestures must be hostile or unwanted. Their consequence is to affect the dignity or psychological or physical integrity of the person against whom they are directed, and to create a harmful work environment for him. "Harmful" refers to an environment that is detrimental, bad or unhealthy.

The hostile gestures towards the employee are not necessarily flagrant. Indeed, it is not necessary that such a gesture be aggressive in nature in order for it to be considered hostile. For example, an employee could be the victim of comments, actions or gestures which, when taken on their own, may seem harmless or insignificant, but the accumulation or combination of them may be considered a harassment situation. In such a case, if the employee works alone most of the time, the hostile gestures will not necessarily be noticeable at first.

The term "unwanted" refers to all of the objectionable conduct. Indeed, the victim does not have to give verbal expression to his rejection of such behaviour; the essential element leading to the ascertainment of harassment is that the behaviour itself is unwanted. It must be possible for the facts in question to be objectively perceived as being unwanted2.

The concept of human dignity means that a person feels respect and self-esteem. Human dignity is associated with physical or psychological integrity. It has nothing to do with the status or the position of a person in his work environment, but rather concerns the way in which a reasonable person feels in the face of a given situation. Human dignity is scorned when a person is marginalized, set aside and devalued3.

A single serious incidence of such behaviour may constitute psychological harassment. The harmful effect of this serious incidence must be felt over time by the person in question. The effect on the dignity or psychological or physical integrity of the employee and the harmful effect cannot be dissociated, in the case both of an isolated incidence and repeated incidences.

In this definition, the legislator is not referring to specific situations or individuals.

Since 2018, the Act respecting labour standards specifies that behaviour that constitutes sexual harassment, whether it is manifested physically or verbally, is considered psychological harassment.

Sexual harassment is codified in section 81.18 ALS as of June 12, 2018.

Sexual harassment is covered by recourses against psychological harassment. Conditions for admissibility and applicability apply in the same way.

It is worthwhile recalling that the Québec Charter of Human Rights and Freedoms and the Civil Code of Québec have specific provisions on this subject.

Section 46 of the Charter stipulates that: "Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being."

As for Article 2087 of the Civil Code of Québec, it states that:

"The employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed, but also to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee."

Identification criteria

The identification of the harassment must be made according to an objective analysis process.

In this respect, the criterion of a "reasonable person" put in the circumstances described in a harassment complaint is an objective identification standard. The point of comparison for this "reasonable person" must be a standard of conduct that is accepted or tolerated by society. As a reference, a person with ordinary intelligence and judgment is chosen to see how this person would have reacted in a given context.

The relevant point of view is hence that of a person who is reasonable, objective and well informed of all the circumstances and finding himself in a situation similar to the one related by the employee. Would this person conclude that this was a harassment situation?

The effect of the application of such standards must not be to deny the normal exercise by the employer of the management of his human resources. It is important to distinguish the actions taken by the employer as part of the normal and legitimate exercise of his management right, even if they involve unpleasant consequences or events, from those taken in a manner that is arbitrary, abusive, discriminatory or outside the normal conditions of employment.

¹ Dhawan vs Commission des droits de la personne et des droits de la jeunesse 2000-06-26 D.T.E. 2000T-633 (C.A.) Confirmed D.T.E. 96T-285 (T.D.P.Q.)

² Habachi vs Commission des droits de la personne, [1999] R.J.Q. 2522 (C.A.)

³  Law vs Canada (Minister of Employment and Immigration), [1999] 1 R.C.S. 497