Filing Evidence From an Occupational Injury File Into the Record of a Claim for Psychological Harassment: Can It Be Done?
École secondaire Marcellin-Champagnat and Dalpé Claes, 2016 QCTAT 2396
On October 24, 2012, complainant Dalpé Claes filed a claim with Quebec’s occupational health and safety board, the Commission de la santé et de la sécurité du travail (the “CSST”) for an occupational injury of a psychological nature. Her complaint was dismissed by both the CSST and the occupational injuries board, the Commission des lésions professionnelles (the “CLP”, now part of the Administrative Labour Tribunal (the “ALT”)). On January 15, 2013, the complainant filed a complaint for psychological harassment with the labour standards board, the Commission des normes du travail (now the labour standards, employment equity and occupational health and safety board, the Commission des normes, de l’équité, de la santé et de la sécurité au travail) which was referred to the labour relations board, the Commission des relations du travail (the “CRT”, which is also now part of the ALT).
Decision rendered orally during the pre-hearing conference
During the pre-hearing conference before the ALT1 on January 22, 2016, the applicant secondary school (École secondaire Marcellin-Champagnat) asked permission to file evidence led before the CLP into the record of the proceeding before the ALT. The applicant maintained that the testimony before the CLP was based on the same facts and/or events that were relevant to the new complaint for psychological harassment, and would allow that complaint to be disposed of. It suggested that only facts that were subsequent to the claim before the CLP should be directly allowed into evidence. The applicant argued that this would save on costs, avoid having to re-summon the same witnesses and expedite the proceedings, in keeping with the proportionality principle and sound case management practice.
The complainant objected to this request. She pointed out that the two complaints were based on different legislative provisions.
Administrative judge Gérard Notebaert of the ALT denied the applicant’s request, as he considered that the tribunal needed to hear all of the evidence in order to be able to assess the credibility of the witnesses. The judge stated however that when the witnesses testified anew, counsel could set up against them the testimony they gave at the initial hearing before the CLP. Furthermore, the ALT would also take into consideration the written proceedings filed with the CLP. According to the ALT, such a request could only be granted in exceptional circumstances, which clearly was not the case in this instance.
Motion for administrative review presented to the ALT (administrative judge Karine Blouin) (“ALT 2”)
The applicant asked ALT 2 to review the ALT decision on the grounds that it contained a substantive or procedural defect, pursuant to s. 49 (3) of the Act to establish the Administrative Labour Tribunal2 (the “AEALT”). It argued in particular that since the CLP and the CRT were each now part of the ALT, the complainant’s two recourses could be joined.
According to ALT 2, the first administrative judge’s decision to re-hear the testimony could not be characterized as patently unjustifiable and was one of the possible outcomes under the circumstances. Because the ALT is master of the evidence and proceedings before it, it can allow into evidence anything it deems relevant, not being bound by the rules set forth in the Code of Civil Procedure3. Moreover, such a decision does not run afoul of the Court of Appeal’s instructions in its 2015 decision in Durocher v. Commission des relations du travail4.
In the view of ALT 2 the possibility under s. 19 of AEALT of joining certain matters has no incidence on the decision rendered by the ALT at the pre-hearing conference.
ALT 2 added that it is up to the parties to make certain admissions or additional requests in order to shorten the duration of the litigation.
Some concluding remarks
In the Durocher decision, the Court of Appeal definitely did not prohibit the filing of evidence led in a proceeding for an occupational injury into the record of a related proceeding for psychological harassment. On the contrary, the Court encouraged taking into consideration the issue of wasting judicial resources by rehearing holus bolus all of the testimony heard during the first proceeding. Despite this encouragement, it is evident that the ALT elected instead to be cautious rather than to fully exercise its power to manage the evidence so as to optimize the resources of the administrative justice system.
While this decision could lead one to conclude that there is a hermetic seal between a proceeding for an occupational injury of a psychological nature and one for psychological harassment, in our view that is not a foregone conclusion. For ALT 2 specified in its decision that in the matter before it, the evidence led before the CLP had been adduced only pursuant to the provisions of the Act respecting Industrial Accidents and Occupational Diseases5 and not pursuant to those of the Labour Standards Act6. That being the case, additional evidence had to be led during the hearing of the complaint for psychological harassment. ALT 2 thus did not rule out the possibility of joining these two types of matters at the outset of the proceedings.
In future, it will be up to the parties who find themselves in such a situation to determine whether it would be useful to ask that the matters be joined.
Written in collaboration with student-at-law Jonathan Poulin
1 The ALT replaced the CRT on January 1, 2016
2 CQLR, c. T-15.1
3 CQLR, c. C-25.01
4 2015 QCCA 1384 (“Durocher”)
5 CQLR, c. A-3.001
6 CQLR, c. N-1.1