Duverger v. 2553-4330 Québec Inc. (Aéropro)

Duverger v. 2553-4330 Québec Inc. (Aéropro)
Collection
Canadian Human Rights Tribunal
Date
2019-04-25
Neutral citation
2019 CHRT 18
File number(s)
T2230/5217
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
Disability
National or Ethnic Origin
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
18
Date: April 25, 2019
File Number:
T2230/5217
Between:
Laurent Duverger
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
2553-4330 Québec Inc. (Aéropro)
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Background to the Complaint 1
II. Issues 1
III. Chronology of the case 2
IV. Applicable law 7
V. Preliminary remarks – scope of the Complaint 10
VI. Analysis of the Complaint 13
A. Interpretation – harassment in matters related to employment 24
(i) Individu, individual 27
(ii) En matière d’emploi, in matters related to employment 31
(iii) Sufficient nexus to the employment context 43
B. Mr. Duverger and his burden regarding his case 46
C. Aéropro’s liability 50
VII. Damages under subsection 53(2) of the CHRA 61
A. Claim for the amount of $6,730.64 under paragraphs 53(2)(b) and (c) of the CHRA 61
B. Claim for the amount of $3,000 under paragraph 53(2)(c) of the CHRA 64
C. Claims for the amount of $20,000 for pain and suffering and $20,000 in special compensation for reckless or willful practices under paragraph 53(2)(e) and subsection 53(3) of the CHRA 66
(i) Pain and suffering 66
(ii) Special compensation 71
D. Interest 75
VIII. Decision 77
I. Background to the Complaint
[1] This is a complaint filed by Laurent Duverger (the Complainant) against 2553-4330 Québec Inc. (the Respondent or Aéropro) under paragraph 14(1)(c) of the Canadian Human Rights Act (CHRA). Mr. Duverger was a weather observer at the station in Chibougamau, Quebec, between October 2007 and June 2010. He alleges that he was harassed by his supervisor, Mr. Raymond Dallaire, on the ground of his disability or his national or ethnic origin.
[2] On November 28, 2013, he filed a complaint with the Canadian Human Rights Commission (the Commission). Several legal proceedings followed the filing of this complaint, including some judicial reviews, which will be explained later in this decision.
[3] It is important to note that on September 12, 2017, the Commission referred the complaint to the Tribunal for inquiry, based on allegations of discrimination under sections 7 and 14 of the CHRA. On September 25, 2017, the Tribunal received a second letter from the Commission, informing it that an administrative error had been made in the initial reference and explaining that the complaint to be dealt with by the Tribunal only concerned the harassment allegations under section 14 of the CHRA and not those under section 7 of the CHRA. The Tribunal shall therefore analyze this complaint under section 14 of the CHRA.
[4] The Tribunal held hearings via videoconference in Ottawa and Québec from October 2 to 4, 2018. The Tribunal did not hesitate to be proactive in managing the hearing, partly because of the use of videoconferencing, and the parties were able to report any technical problems arising from the use of videoconferencing.
[5] For the reasons set out below, the Tribunal grants Mr. Duverger’s complaint, in part.
II. Issues
[6] The issues to be determined by the Tribunal are the following:
(1) Did the Complainant meet the burden of proof for his case regarding the harassment in matters related to employment (paragraph 14(1)(c) of the CHRA)?
a. Is there a prohibited ground of discrimination under the CHRA?
b. Did the harassment have an adverse impact?
c. Is there a link between the protected prohibited ground of discrimination and the adverse impact, i.e., was the protected ground a factor in the adverse impact?
(2) If the Complainant meets the burden of proof for his case, was the Respondent able to present a defence or limit its liability under section 65(2) of the CHRA?
(3) If not, what remedies should the Tribunal order?
III. Chronology of the case
[7] First, the Tribunal is of the view that it is important to review the chronology of the various cases opposing Mr. Duverger and his former employer, Aéropro.
[8] It is unfortunate that the parties did not specifically help the Tribunal make connections between the various legal proceedings in which they were involved as adversarial parties, even though, at the hearing and when they submitted their evidence, it was clear that the parties had a lengthy judicial history. However, the Tribunal cannot disregard this chronology because it will be discussed later in this decision. The decisions rendered by certain judges and the arbitration award rendered by a referee will have a significant impact on the case.
[9] That said, the Tribunal benefitted from the filing of several decisions and an arbitration award, which helped to clarify this history. More specifically, Mr. Duverger filed the following decisions:
· L.D. et Aéropro, 2013 QCCLP 1871, rendered on March 20, 2013, by Pierre Sincennes, administrative judge at the Commission des lésions professionnelles (hereinafter referred to as the CLP);
· L.D. et Aéropro, 2013 QCCLP 3939, rendered on June 27, 2013, by Marie Langlois, administrative judge at the CLP;
· 2553-4330 Québec Inc. v. Duverger, 2017 FC 128, rendered on February 2, 2017, by the Honourable Madam Justice Martine St-Louis;
· 2553-4330 Québec Inc. v. Duverger, 2018 FC 377, rendered on April 9, 2018, by the Honourable Mr. Justice Luc Martineau.
[10] In turn, the Respondent filed the following decisions:
· 2553-4330 Québec Inc. c. Laurent Duverger, EYB 2015-255245, arbitration award rendered on February 18, 2015, by referee Léonce-E. Roy;
· Laurent Duverger v. 2553-4330 Québec Inc., 2015 FC 1131, rendered on October 2, 2015, by the Honourable Justice Michel Beaudry;
· Laurent Duverger v. 2553-4330 Québec Inc., 2016 FCA 243, rendered on October 3, 2016, by the Honourable Justices Johanne Trudel, Richard Boivin and Yves de Montigny.
[11] After a careful reading of these decisions, the Tribunal was able to gain insight into the sizeable judicial history between the parties, which can be divided into four categories. Without claiming to cover this entire history and all the details of the proceedings, the following overview suffices:
· Mr. Duverger started working at Aéropro in May 2008.
· Mr. Duverger resigned on June 21, 2010.
Commission de la santé et de la sécurité au Travail and the Commission des lésions professionnelles
· On March 8, 2012, Mr. Duverger filed a claim with the Commission de la santé et de la sécurité du travail (CSST) for an occupational injury sustained while employed by the Respondent.
· On May 15, 2012, the CSST denied his claim because it was considered to be prescribed.
· Mr. Duverger requested an administrative review of this decision, which was upheld by the CSST on June 21, 2012. He requested a review of this decision by the CLP.
· On March 20, 2013, the CLP reversed the decision rendered by the CSST (see L.D. et Aéropro, 2013 QCCLP 1871, rendered on March 20, 2013, by Pierre Sincennes).
· On June 27, 2013, the CLP rendered a new decision and determined that Mr. Duverger had sustained an occupational injury (see L.D. et Aéropro, 2013 QCCLP 3939, rendered on June 27, 2013, by Marie Langlois).
Canada Labour Code, Labour Program and Arbitration
· On August 6, 2013, Mr. Duverger filed a complaint under the Canada Labour Code (hereinafter referred to as the CLC) to claim a standard wage top-up, additional overtime hours, annual vacation pay and compensation for pain and suffering.
· This complaint was received on August 15, 2013, by Human Resources and Skills Development Canada (hereinafter referred to as HRSDC).
· On July 3, 2014, Ms. Johanne Blanchette, a Labour Program inspector, responded to Mr. Duverger's claim under the CLC and issued a payment order requiring Aéropro to remit the amount of $6,730.64 to the Receiver General for Canada, on behalf of Mr. Duverger.
· On July 18, 2014, Aéropro appealed the decision rendered by Ms. Blanchette of the Labour Program, primarily on the ground that the claim was filed outside of the limitation period.
· On February 18, 2015, referee Léonce-E. Roy allowed the appeal filed by Aéropro of the payment order issued by inspector Ms. Blanchette and ruled that Mr. Duverger’s right of action was prescribed and that Mr. Duverger had not been unable to act before August 6, 2013, the date on which his complaint under the CLC was filed (see 2553-4330 Québec Inc. c. Laurent Duverger, EYB 2015-255245, arbitration award rendered on February 18, 2015, by referee Léonce-E. Roy). Mr. Duverger filed an application for judicial review of this decision with the Federal Court.
· On October 2, 2015, the Honourable Justice Beaudry of the Federal Court dismissed Mr. Duverger’s application for judicial review of referee Léonce-E. Roy’s arbitration award; Mr. Duverger appealed the Federal Court’s decision before the Federal Court of Appeal.
· On October 3, 2016, the Federal Court of Appeal dismissed Mr. Duverger's appeal from the decision rendered by the Honourable Justice Beaudry (see Laurent Duverger v. 2553-4330 Québec Inc., 2016 FCA 243). Consequently, the arbitration award rendered by referee Léonce-E. Roy was upheld.
Canadian Human Rights Commission and Tribunal
· On August 23 and 26, 2013, Mr. Duverger filed two complaints against Aéropro with the Commission, pursuant to sections 7 and 14 of the CHRA.
· On November 28, 2013, the Commission consolidated the complaints filed on August 23 and 26, 2013.
· On October 29, 2014, the Commission decided not to deal with the complaint filed by Mr. Duverger, finding that it was vexatious within the meaning of paragraph 41(1)(d) of the CHRA. Mr. Duverger filed an application for judicial review of this decision with the Federal Court.
· On September 11, 2015, the Federal Court allowed Mr. Duverger’s application for judicial review of the Commission’s decision to not deal with his complaint because it was vexatious. The complaint was referred back to the Commission for a two-tiered inquiry dealing with the wage disparity and the post-employment harassment.
o The Tribunal notes that neither of the parties filed this decision; they instead filed the decision rendered by the Honourable Madam Justice St-Louis, 2553-4330 Québec Inc. v. Duverger, 2017 FC 128, which discusses the decision rendered by the Honourable Mr. Justice Yvan Roy (Duverger v. 2553-4330 Québec Inc. (Aéropro), 2015 FC 1071) at paragraph 11.
· On March 30, 2016, the Commission, after addressing the preliminary objections raised by Aéropro, decided that it would deal with Mr. Duverger’s consolidated complaint. Aéropro challenged this decision before the Federal Court.
· On February 2, 2017, the Federal Court dismissed Aéropro’s application for judicial review of the Commission’s decision to deal with Mr. Duverger’s consolidated complaint (see 2553-4330 Québec Inc. v. Duverger, 2017 FC 128).
· On June 9, 2017, Mr. Philippe Harpin, a Commission investigator, finalized his investigation report.
· On August 30, 2017, the Commission finally dealt with Mr. Duverger’s consolidated complaint and referred part of the complaint, concerning the fact that the defendant (Aéropro) did not take appropriate measures to address acts of harassment or prevent their recurrence, to the Tribunal. The Commission also found that the alleged adverse treatment was not related to one of the prohibited grounds of discrimination raised in the complaint. Aéropro challenged this decision before the Federal Court.
· On September 12, 2017, the Commission sent a first letter to the Tribunal, referring it the complaint.
· On September 25, 2017, the Commission sent a second letter because an administrative error had been made in the letter dated September 12. In this letter the Commission clarified that the inquiry should focus only on the allegations under section 14 of the CHRA.
· On February 6, 2018, the Tribunal dismissed an application for a stay of proceedings filed by Aéropro (Laurent Duverger v. 2553-4330 Québec Inc. (Aéropro), 2018 CHRT 5).
· On April 9, 2018, the Federal Court dismissed Aéropro’s application for judicial review of the Commission’s decision to refer the portion of the complaint concerning post-employment harassment to the Tribunal (see 2553-4330 Québec Inc. v. Duverger, 2018 FC 377).
Commission des droits de la personne et de la jeunesse and Quebec Human Rights Tribunal
· The parties also briefly informed the Tribunal that other proceedings were under way before the Quebec Commission des droits de la personne et de la jeunesse and before the Human Rights Tribunal, including against Mr. Dallaire personally.
o Note that Mr. Dallaire is not personally named as a party to the proceedings before the Tribunal; only Aéropro is named as the Respondent.
IV. Applicable law
[12] It cannot be said enough: the purpose of the CHRA is to guarantee that all individuals have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on any of the prohibited grounds of discrimination under the CHRA (see section 2 CHRA).
[13] In the context of an inquiry into a human rights complaint, the burden of proof rests with the Complainant. This is what the tribunals and courts of justice traditionally refer to as a prima facie case of discrimination, a Latin expression I tend to avoid because I do not believe that it is helpful and may even give rise to misunderstandings concerning the applicable law in matters related to discrimination (see similar comments in Simon v. Abegweit First Nation, 2018 CHRT 31, at para. 51. See also Emmet v. Canada Revenue Agency, 2018 CHRT 23, at paras. 53 and 54 as well as Vik v. Finamore (No. 2), 2018 BCHRT 9).
[14] This does not change the applicable analysis in this case, which has been performed countless times. The Complainant’s burden is to make a case “[...] which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer” (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536, at para. 28).
[15] The three-step analysis for matters related to discrimination was established by the Supreme Court of Canada in Moore v. British Columbia (Education), [2012] SCR 61 [Moore], at para. 33. According to this analysis, in matters concerning harassment, the Complainant must demonstrate :
(1) that he has a prohibited ground protected from discrimination under the CHRA (in this case, disability or national or ethnic origin);
(2) that he experienced an adverse impact; and
(3) that the prohibited ground of discrimination (disability or national or ethnic origin) was a factor in the harassment in matters related to employment.
[16] The evidence presented to the Tribunal must be analyzed on a balance of probabilities and it is not necessary to demonstrate that the prohibited ground was the sole factor in the adverse impact experienced by the complainant (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), [2015] SCR 789) [Bombardier].
[17] Direct proof of discrimination is not necessarily required, nor is it mandatory to demonstrate an intention to discriminate (see Bombardier, at paras. 40 and 41). Discrimination is generally neither open nor intentional, and the Tribunal must consider all the circumstances that gave rise to the complaint in order to determine whether there is a subtle scent of discrimination. The Tribunal can therefore draw inferences from circumstantial evidence when the evidence presented in support of allegations make such an inference more probable than other possible inferences or hypotheses (see Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT)). That said, the circumstantial evidence must be tangibly related to the Respondent’s impugned decision or conduct (see Bombardier, at para. 88).
[18] I believe that when the Tribunal must decide whether a complainant has discharged his or her burden, it must analyze the evidence in its entirety, including the evidence filed by the respondent. The Tribunal may determine that the complainant failed to meet the burden of proof for his or her case if the evidence presented is not complete or sufficient or if the respondent was able to present certain evidence that, for example, refutes the complainant’s allegations.
[19] Conversely, if a complainant is able to meet the burden of proof for his or her case, the respondent may avail itself of a defence provided in the CHRA, when possible, or limit liability, where applicable, under subsection 65(2) of the CHRA. In this case, the Respondent relied on this provision.
[20] Section 65 of the CHRA provides for the presumption that any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall be deemed to be an act or omission committed by that person, association or organization. An act or omission shall not be deemed to be an act or omission committed by a person, association or organization if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof (subsection 65(2) CHRA).
[21] Later in the decision we will see that the Respondent argues that post-employment harassment is not covered by paragraph 14(1)(c) of the CHRA. With respect to the interpretation of the scope of this paragraph, it is my opinion that this is a question of mixed fact and law (this is also the opinion of the Honourable Mr. Justice Martineau, 2553-4330 Québec Inc. v. Duverger, 2018 FC 377, at para. 47). That said, the Tribunal cannot delve into the interpretation of this provision without first making its own findings of fact. Consequently, the Tribunal will analyze the facts of this case and, in light of these facts, it will be able to interpret the scope of paragraph 14(1)(c) of the CHRA.
V. Preliminary remarks – scope of the Complaint
[22] Before analyzing the complaint, it is first necessary to clarify the scope thereof, since this will have an impact on the remainder of the decision.
[23] As mentioned briefly in the background to this decision, on November 28, 2013, Mr. Duverger filed a complaint with the Commission under sections 7 and 14 of the CHRA.
[24] The progression of the case between Mr. Duverger and Aéropro was marked by several legal proceedings, including before the Commission des lésions professionnelles, the Federal Court and even the Federal Court of Appeal. The Complainant also pursued certain remedies under the Canada Labour Code, in addition to the proceedings instituted under the CHRA. The complaint before the Tribunal is therefore just a tiny part of the primarily legal proceedings that have taken place between the parties.
[25] The complaint was referred to the Tribunal for inquiry on September 12, 2017, following an investigation by Mr. Harpin, Commission investigator. This referral from the Commission did not specify the discriminatory practices that the Tribunal should focus on in its inquiry into the complaint.
[26] On September 25, 2017, the Tribunal received a second letter from the Commission informing it that an administrative error had been made in its previous letter. This time, the Commission clarified that the complaint referred to the Tribunal concerned section 14 of the CHRA only and that it was not requesting an inquiry into the complaint under section 7 of the CHRA.
[27] The complaint under section 7 of the CHRA concerned adverse differential treatment that Mr. Duverger allegedly suffered in the course of his employment and more specifically, allegations of wage disparities. These wage disparities included a denied wage increase, unpaid overtime hours and unauthorized deductions from the Complainant’s wages. The complaint under section 14 of the CHRA concerned acts of post-employment harassment against the Complainant regarding which the Respondent allegedly failed to take appropriate measures to correct the situation or prevent the acts from recurring.
[28] The Tribunal benefited from the Commission’s decision dated August 30, 2017. It also benefited from the investigation report completed on June 9, 2017, since all these documents were filed at the hearing. Mr. Harpin’s investigation report was produced after the Federal Court’s decision to refer the case back to the Commission because the CLP had not dealt with the issues of compensation and various wage conditions (discriminatory treatment) or the post-employment harassment. It was the Honourable Justice Roy, in his decision dated September 11, 2015 (Duverger v. 2553-4330 Québec Inc. (Aéropro), 2015 FC 1071), who referred the case back to the Commission so that it could inquire into these two aspects. In paragraphs 59 to 61, he wrote as follows:
[59] The Canadian Human Rights Commission refused to take up the two-tiered complaint submitted by the applicant. Whereas the applicant was complaining of wage disparity prohibited under the Act and post-employment discriminatory harassment by his ex-employer, the Commission found that a decision rendered by the Commission sur les lésions professionnelles du Québec contained basically the same allegations as in the complaint. This was not the case.
[60] With regard to post-employment harassment, the CLP decision only deals with actions at the end of employment; it did not settle the post-employment harassment issue in any way. Wage discrimination was not the subject of the decision cited by the Commission for refusing to take up the complaint. In fact, in July 2014, the CLP stated that it was incapable of rendering a decision on this type of allegation.
[61] It follows that the Commission’s decision of October 29, 2014, must be set aside and that the review of the applicant’s two-tiered complaint must be returned to the Commission. . . .
[29] Mr. Harpin’s investigation focused specifically on these two aspects.
[30] On page 2 of the investigation report, paragraph 2 of the section entitled La Plainte [the complaint], it is noted that the investigation covered two specific aspects: allegations of wage disparities that allegedly occurred in Chibougamau from May 2008 to June 21, 2010, and the harassment that allegedly occurred almost two years after the Complainant’s resignation, from April 2012 to July 2012.
[31] Further on in the report, page 3, paragraph 19, the investigator states that he investigated three specific allegations: (1) a denied wage increase; (2) unpaid overtime hours and unauthorized payroll deductions; and (3) the harassment by Mr. Dallaire after the Complainant's employment had ended.
[32] Also in the investigator’s report, in the section entitled Enquête [investigation], page 5, paragraphs 24 and following, the investigator placed the denied wage increase and unpaid overtime hours and unauthorized payroll deductions in the same category. These two allegations were dealt with under the heading A. Distinction défavorable en matière d’emploi [adverse differentiation in matters related to employment]). The harassment allegations, for their part, are discussed in a different section, under the heading B. Harcèlement post-emploi allégué [alleged post-employment harassment].
[33] In the section entitled Sommaire [summary], page 12, paragraphs 92 to 94, the investigator states that the evidence concerning the unpaid overtime hours and the unauthorized payroll deductions did not warrant review because it was not linked to a prohibited ground. With respect to the allegations of harassment during the period after Mr. Duverger’s employment had ended, the evidence obtained by the investigator justified a review of those allegations.
[34] Finally, the investigator’s recommendations, page 13, paragraph 100, are in line with what has already been said; the investigator recommended that the Commission refer the complaint to the Tribunal for inquiry, but only into a very specific part of the complaint, namely, the portion of the complaint concerning the acts of post-employment harassment.
[35] All in all, based on the Federal Court decision rendered by the Honourable Mr. Justice Roy on September 11, 2015, and the Commission’s investigation report and decisions referring the complaint to the Tribunal for inquiry, it is clear that the Tribunal should only deal with the post-employment harassment allegations. The allegations concerning compensation and other wage conditions do not fall within the scope of the complaint before the Tribunal.
VI. Analysis of the Complaint
[36] The evidence shows that Aéropro is a company that operates in the aviation sector. It carries out various airport-related activities, including aircraft maintenance, airport management and management of meteorological and aerological stations.
[37] The Complainant is of French origin and has been living in Quebec for several years. The evidence shows that he started working in Chibougamau, more specifically at Chibougamau Airport, as a meteorological observer.
[38] It is the Tribunal’s understanding that this airport was initially operated by another contractor, a company called ATS. In 2008, Aéropro submitted a bid to Environment Canada for management of the Chibougamau Airport, a contract it was awarded in May 2008.
[39] That said, Mr. Duverger started working for ATS in 2007. In order to ensure continuity of service, Aéropro retained the existing staff, including the Complainant, when it began operating the airport in May 2008.
[40] Mr. Duverger testified that during his employment with Aéropro, he was subjected to hostile, degrading and even threatening treatment by his supervisor, Mr. Dallaire, and his colleagues. Mr. Duverger testified, for example, that Mr. Dallaire threatened him in October 2009 by placing his fist close to his face and then, in January 2010, made a throat-slashing gesture, which he had perceived as a death threat.
[41] He also testified about certain humiliating events that occurred in the workplace, including degrading comments made by his work colleagues in relation to his French origins. He also explained that Mr. Dallaire had blackmailed him when he had requested a letter that he needed for his immigration application.
[42] He also testified about the transportation problems he had faced in getting to Chibougamau Airport, which is located several kilometres from the city. Mr. Dallaire offered transportation to another employee, of African origin, but did not do the same for Mr. Duverger. Mr. Duverger also had to sleep in the shed (to use the term employed by the Complainant) at the weather station, which is the property of Environment Canada. It is the Tribunal’s understanding that the use of this shed for living purposes was not approved by Environment Canada, which forced Mr. Duverger to sleep in the weather station, which is owned by Environment Canada, instead. At the time, Mr. Dallaire had taken Mr. Duverger’s personal belongings from the shed and spread them out on the floor of the station, which Mr. Duverger had found humiliating and inappropriate.
[43] All these events occurred while Mr. Duverger was employed by Aéropro. The Tribunal does not intend to list everything that happened during that period. It is important to note that the Tribunal is not required to make findings of fact concerning any harassment that might have occurred during Mr. Duverger’s employment. Instead, the aim is to put the complaint and the events that occurred after Mr. Duverger’s employment into context.
[44] As mentioned earlier, it is clear that the harassment allegations in Mr. Duverger's complaint concern only the allegations that were made after his resignation (post-employment harassment).This emerges from the investigation and the Commission’s decision, which is also consistent with the decision rendered by the Federal Court in Duverger v. 2553-4330 Québec Inc. (Aéropro), 2015 FC 1071, in which the Honourable Mr. Justice Yvan Roy reversed the Commission’s decision not to deal with Mr. Duverger’s complaint and ordered the Commission to conduct a two-tiered review of the complaint.
[45] In addition, Marie Langlois, the administrative judge of the CLP, has already conducted an analysis of several events that occurred while Mr. Duverger was employed by Aéropro. The Tribunal refers to the decision in L.D. et Aéropro, 2013 QCCLP 3939, dated June 27, 2013.
[46] It is true that the objective of the CLP was not to determine whether Mr. Duverger had been discriminated against and more specifically, harassed during his employment with Aéropro. The CLP’s mandate was to determine whether he had sustained an occupational injury. This is in fact what it did, by making findings of facts concerning the threatening, hostile and degrading behaviour to which Mr. Duverger was subjected at the hands of his supervisor and other work colleagues.
[47] On this subject, the CLP wrote the following, in paragraphs 58 to 61:
[translation]
[58] I noted that a number of threatening, hostile and degrading actions that even endangered the health and safety of the worker were committed, that the most humiliating and vexatious comments were uttered numerous times, all of which were prejudicial to the dignity of the worker. All of the incidents and the cruelty that they involved differ greatly from what is likely to occur in a normal work environment.
[59] In short, the Commission des lésions professionnelles believes that the worker demonstrated, based on a preponderance of evidence, that the established facts constitute “an unforeseen and sudden event” within the meaning of the case law.
[60] In addition, these incidents are traumatizing enough, in and of themselves, to cause an illness of a psychological nature and furthermore, the medical evidence establishing this link is unequivocal. Therefore, the post-traumatic stress disorder and adjustment disorder with depressed mood diagnosed by Doctor Cadivy on April 26, 2012, as well as the post-traumatic stress diagnosed by Doctor Séguin on May 28, 2013, are occupational injuries sustained as a result of a work-related accident.
[61] Since the events that caused the occupational injury started on October 17, 2007, and led to the resignation of the worker on June 21, 2010, the Commission des lésions professionnelles finds that the occupational injury was sustained on June 21, 2010.
[48] Mr. Duverger’s testimony about certain events, even though he did not go into all the details, together with the findings of fact made by Marie Langlois, the administrative judge, gave the Tribunal some insight into Mr. Duverger’s work environment.
[49] The evidence also confirms that Mr. Duverger resigned from his position on June 21, 2010, as he was no longer able to tolerate the situation at Aéropro. He then left Chibougamau and settled in Gatineau.
[50] It was several months after his resignation that he received a number of emails from Mr. Dallaire that he considered to be harassing. These emails were sent some time after Mr. Duverger filed a claim with the CSST for an occupational injury of a psychological nature. It is this claim that led to the decision rendered by Ms. Langlois on June 27, 2013.
[51] In the Tribunal’s opinion, this is the crux of Mr. Duverger’s complaint. Both Mr. Duverger and the Respondent filed the emails that were exchanged between Mr. Dallaire and Mr. Duverger.
[52] The first email was sent by Mr. Dallaire on April 23, 2012, 46 days after the claim was filed with the CSST. The subject line of the email reads PARASITE and the email address used was [email protected]. The full contents of Mr. Dallaire’s email are provided below:
[translation]
You are the biggest idiot that I have had to work with in 25 years. So go back to your country because over here, you are just a parasite.
[53] Mr. Duverger replied to this email the next day, on April 24, 2012, and copied two individuals: Richard Légaré, who was a member of the management team, and Pauline Gagnon, who was the human resources manager and assistant to Aurèle Labbé, the CEO of Aéropro. The full contents of Mr. Duverger’s email are provided below:
[translation]
Mr. Dallaire,
I am a human being, not a parasite. Obviously, you do not understand that yet. I would be able to work today if you had treated me properly. It is your fault.
My country is Canada and I agree with the ruling by Transport Canada:
[translation] “The conduct and history of 2553-4330 Québec Inc. [Aéropro] and its chief executive officer reveal a history and culture of delinquent operations and support the conclusion that this company acts in a manner that endangers and undermines aviation safety and the safety of its passengers and crew and the public”, as stated in paragraph 60 of the federal government's response, challenging the carrier’s recent application for an injunction.
Paragraph 17, adds that the history of the carrier and its president [translation] "reveals that this company has stubbornly flouted, disregarded and ignored the requirements provided in legislation and regulations and has failed to comply with various notices of non-compliance issued by TC [Transport Canada] over the years.”
In the same document, the Department goes back to 1993 to recall that Aéropro was involved in five accidents, including four since 2001. [translation] “Two of these accidents caused a total of eight deaths and two others caused injuries to six occupants, two of whom were seriously injured”.
Most of the pilots I have spoken to also agree with this ruling.
[54] That same day, Mr. Dallaire sent another email to Mr. Duverger entitled Duverger dit le CON [Duverger the IDIOT], still using the same email address, i.e., [email protected]. He wrote as follows:
[translation]
Everything that you have just written to me confirms that you are, in fact, just a fucking idiot
[55] In addition, on April 25, 2012, he sent another email entitled io le trou d’cul [hey asshole]:
[translation]
If you ever show up here, you can expect a welcoming committee
[56] That same day, Mr. Duverger sent him a reply:
[translation]
You should check the dictionary for the meaning of “welcoming committee”.
I sent my claim to the CSST on March 26. Why are you insulting me 1 month later? You made me suffer so much, so I clearly deserve the CSST.
[57] Mr. Dallaire later responded as follows:
[translation]
All that I will give you is a kick in the butt that will send you back to Paris
[58] Shortly after sending this email, Mr. Dallaire sent another, adding the following:
[translation]
I suggest that you file your stupid complaint with the UN and if I am summoned; I will go there.
[59] Shortly afterwards, Mr. Dallaire continued, sending a 3rd email:
[translation]
Can you give me your phone number? Mine is [###]
[The Tribunal deliberately omitted the phone number provided.]
[60] During the evening of May 2, 2012, Mr. Dallaire sent another email to Mr. Duverger, without a subject, still using the same email address, [email protected]:
[translation]
To His Royal Highness; Laurent the First of his name
Given your need to benefit as much as possible from social programs in Quebec and Canada (unemployment insurance, social assistance, CSST, health insurance and hospitalization, etc.), I suggest the following.
You can find a room in the psychiatric wing of the hospital of your choice. You will be housed there, fed, medicated and treated by a psychiatrist. And all of that will not cost you anything. It is more profitable than the CSST and it will make you a very honourable citizen who will no doubt receive the Order of Canada.
Respectfully,
Raymond Dallaire, a simple descendant of a family of farmers since 1640, since New France.
[61] Finally, Mr. Dallaire sent one last email, on May 7, 2012, using the same email address, indicating conseil [advice]) in the subject line:
Go back to your country. To your mum and/or your dad. Because over here you have no future and you are becoming depressed and no one can help you.
[62] That said, do these emails constitute harassment in matters related to employment under paragraph 14(1)(c) of the CHRA? Two components must be analyzed by the Tribunal: (1) the harassment and (2) the matters related to employment.
[63] First, harassment is not defined in the CHRA. However, the case law of the Tribunal and the courts of justice have put some guidelines in place for its interpretation. For example, in Morin v. Canada (Attorney General) 2005 CHRT 41 [Morin], member Athanasios D. Hadjis wrote the following, in paragraphs 245 and 246:
[245] It is a discriminatory practice, under s. 14 of the Act, to harass an individual on a prohibited ground of discrimination in matters related to employment.
[246] Harassment, as proscribed under the Act, has been broadly defined as unwelcome conduct related to one of the prohibited grounds of discrimination that detrimentally affects the work environment or leads to adverse job-related consequences for the victims (Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252 at 1284; Rampersadsingh v. Wignall (No. 2) (2002), 45 C.H.R.R. D/237 at para. 40 (C.H.R.T.)). In Canada (HRC) v. Canada (Armed Forces) and Franke, [1999] 3 F.C. 653 at paras. 29-50 (F.C.T.D.) (Franke), Madame Justice Tremblay-Lamer articulated the test for harassment under the Act. In order for a complaint to be substantiated, the following must be demonstrated:
The respondent's alleged conduct must be shown to be related to the prohibited ground of discrimination alleged in the complaint (in the present case, the Complainant's colour). This must be determined in accordance with the standard of a reasonable person in the circumstances of the case, keeping in mind the prevailing social norms.
The acts that are the subject of the complaint must be shown to have been unwelcome. This can be determined by assessing the complainant's reaction at the time of the alleged incidents of harassment and ascertaining whether he expressly, or by his behaviour, demonstrated that the conduct was unwelcome.A verbal “no” is not required in all circumstances - a repetitive failure to respond to a harasser's comments constitutes a signal to him that his conduct is unwelcome.The appropriate standard against which to assess a complainant's reaction will also be that of a reasonable person in the circumstances.
Ordinarily, harassment requires an element of persistence or repetition, but in certain circumstances even a single incident may be severe enough to create a hostile environment.For instance, a single physical assault may be serious enough to constitute harassment, but a solitary crude joke, although in poor taste, will not generally be enough to constitute harassment since it is less likely, on its own, to create a negative work environment.The objective, reasonable person standard is used to assess this factor as well.
Finally, where a complaint is filed against an employer regarding the conduct of one or more of its employees, as in the present case, fairness demands that the victim of the harassment, whenever possible, notify the employer of the alleged offensive conduct.This requirement exists where the employer has a personnel department with a comprehensive and effective harassment policy, including appropriate redress mechani