Towards greater employer responsibility for psychological safety under the Code of Civil Procedure:  Issues and Perspective

Introduction

Under the Act respecting occupational health and safety¹ (AOHS), employers have

an obligation to protect the health and safety of workers². This responsibility includes implementing measures to prevent, protect workers exposed to psychological, physical, or sexual violence, and put an end to such behavior.

The new section 515.1 of the Code of Civil Procedure makes it easier for employers to issue protection orders, enabling them to take more effective action to protect employees.

Employers' Obligation to Protect 

Since Bill 59 came into effect, the Act respecting occupational health and safety requires Québec employers to protect the psychological health of workers, including situations of domestic, family, or sexual violence that occur outside of work^3.. The employer is required to take the measures if he knows or ought reasonably to know that the worker is exposed to such violence.

First, section 51(16) provides that companies employing twenty (20) or more people must adopt a structured approach to using methods and techniques to identify, control, and, above all, eliminate risks that may affect the health and safety of workers, including psychosocial risks.

Section 51(16) of the AOHS is particularly interesting, as it extends the employer's obligation to situations occurring outside of work⁴:

51. Every employer must take the necessary measures to protect the health and ensure the safety and physical and mental well-being of his worker. He must, in particular:

[...]

16° take the measures to ensure the protection of a worker exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace and take any other measure that may be determined by regulation to prevent or put a stop to sexual violence.

For the purposes of subparagraph 16 of the first paragraph, in a situation of spousal or family violence, the employer is required to take the measures if he knows or ought reasonably to know that the worker is exposed to such violence.

(Our emphasis)

This obligation also extends to the behavior of third parties (suppliers, customers, etc.) that interferes with work.

The employer cannot justify inaction on the grounds of private life. He must assess the risks associated with the work environment, adapt working conditions if necessary, and collaborate with external resources as needed.

This obligation involves the implementation of concrete measures, including an individual safety plan, access monitoring, workplace adaptation, and a duty to raise employee awareness.

Failure to intervene could result in civil liability for the employer, a complaint to the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) and even a claim for occupational injury.

Legal Remedy : A Legal Tool Available to Employers

A. Injunction

The recent decision Boulangerie Canada Bread Ltd. v. Therrien⁵ recognized the possibility for an employer to obtain a permanent injunction against a former employee, who has become a third party to the employer and who is engaging in threatening behavior toward his former colleagues. This decision confirmed that an employer could take legal action to protect an employee, even if the source of the harassing conduct originated in the private sphere.

To obtain an injunction, the employer must demonstrate:

• The existence of serious and irreparable prejudice;
• The absence of a reasonable solution by other means;
• That the injunction is necessary to ensure the safety of employees⁶ .

This approach can be considered in parallel with an internal safety plan and in collaboration with law enforcement authorities.

B. Protective Order

In 2022, the decision Trivium Avocats Inc. v. Rochon⁷ was the first decision to apply section 51(16) of the AOHS. In this decision, the employer requested a protection order to protect its employee who was a victim of domestic violence, in a situation where the son of a

employee was calling her at work several times a day to threaten and intimidate her and demand money. Under these circumstances, the employee was distressed and unable to perform her duties. The Superior Court recognized that the employer had a duty to act in a situation of domestic violence occurring in the workplace, and that this duty could justify the protection order.

However, it is interesting to note in this decision that the orders sought by the employer and granted by the court all relate to the workplace and involve not going to the building where the offices are located, not contacting the victim during working hours, and not contacting any employee at any time for the purpose of communicating with the victim.

On June 4, section 515.1 of the Code of Civil Procedure came into force, which reads as follows:

515.1. A protection order is an order directing a natural person to refrain from or cease doing something or to perform a specified act in order to protect another natural person who fears that their life, health or safety is threatened, in particular due to a context of violence based on a concept of honour, of family, spousal or sexual violence, of intimidation or of harassment.

An application for a protection order may be made by means of an outline that briefly presents the alleged facts or by using the form established by the Minister of Justice.

An application for a protection order may also be made, where the person fearing the threat consents to it or where the court so authorizes, by another person or by a body.

[...]

(Our emphasis)

Furthermore, failure to comply with a protection order constitutes a criminal offense⁸.

This section provides more detailed guidance on the protection order that existed under the sections relating to injunctions (sec. 49, 58 et 509  C.p.c.). Thus, while section 509, paragraph 2 of the Code of Civil Procedure allowed for the issuance of a protection order to “protect another natural person whose life, health or safety is threatened,” section 515.1 C.C.P. allows such an order to be issued to “protect another natural person who fears that their life, health, or safety is threatened.”

A parallel can be drawn with section 810 of the Criminal Code⁹, which allows for an information to be laide before a justice by a person who reasonably fears that another person will injure them or damage their property. Such an information can also be laid on behalf of another person, e.g., a close relative or intervener. The notable difference with section 515.1 C.C.P. is that the consent of the person experiencing the fear is necessary for the information to be laid.

The Journal des débats parlementaires specifies that the criteria for obtaining a protection order are less stringent than those for an injunction, which requires proof of violence. With regard to protection orders, the criterion is now that of fear, which will be assessed by the court according to objective criteria (overall picture of the situation) and subjective criteria (depending on the person and their perception). The burden of proof is also less than in cases of criminal harassment.

Parliamentary debates make no mention of paragraph 3 of section 515.1 C.C.P., and it has not yet been interpreted by the courts. Thus, there is no clear answer as to whether an employer could act on its own initiative to request a protection order in the purely private sphere of an employee.

Reflexion

In our opinion, it would be possible for an employer to apply for a protection order under section 515.1 C.C.P. if they are aware of a threat to the life, health, or safety of an employee. This interpretation is part of a current initiated by lawmakers in recent years, whereby employers are being given increasing responsibility for addressing social issues arising from their employees' private lives, including domestic and spousal violence. In fact, lawmakers now recognize the workplace, where workers spend most of their time, as a prime location for tackling certain social ills, such as domestic and spousal violence.

It remains difficult to anticipate in concrete terms what action an employer would take in a situation where an employee working entirely from home were to be a victim of domestic or family violence.

However, it should be noted that the employer does not need to be certain that the employee is a victim of domestic or family violence. His obligation arises as soon as he if he knows or ought reasonably to know that the worker is exposed to such violence¹⁰. Therefore, an employer who, for example, notices signs of physical violence on one of these employees should then intervene to stop the violence. The same would apply to suspicions of psychological abuse, whether domestic or familial.

Regardless of who is responsible for the harassment, the employer must take reasonable measures to eradicate it. Finally, it will be interesting to assess how the courts will interpret the scope of this employer obligation in light of the protection order under the new section 515.1, paragraph 3 of the Code of Civil Procedure. For example, we may wonder whether an employer's failure to request such an order, when the conditions for its issuance are met, could be interpreted as a breach on the part of the employer and render them liable.

Conclusion

In recent years, employers' obligations regarding psychological safety have expanded considerably in Québec. Recognizing domestic violence as an occupational risk requires increased vigilance and greater intervention capabilities. The possibility of resorting to legal measures, such as injunctions and protection orders, illustrates this transformation of the employer's role, which is now recognized as a social protection actor.

Employers must now incorporate these aspects into their practices in order to ensure a safe working environment that complies with legal requirements.

Footnotes

1. RLRQ, c. S-2.1.
2. 9 AOHS.
3. 51(16) AOHS.
4. Section  1  AOHS  also provides for the extension of the obligation to telework.
5. 2024 QCCS 4047, EYB 2024-556464.
6. 509 à 511 C.p.c.
7. 2022 QCCS 4628, EYB 2022-500925.
8. 127 C.cr. ; R. v. Gibbons, 2012 CSC 28, EYB 2012-207448.
9. R.C. (1985), ch. C-46.
10. 51, al. 2 AOHS.