André v. Matimekush-Lac John Nation Innu

André v. Matimekush-Lac John Nation Innu
Collection
Canadian Human Rights Tribunal
Date
2021-02-18
Neutral citation
2021 CHRT 8
File number(s)
T2452/0920
Decision-maker(s)
Gaudreault, Gabriel
Decision type
Decision
Decision status
Final
Grounds
Disability
Sex
Notes
This translation is subject to editorial revision before its reproduction in final form on the Tribunal’s website.
Summary:
Ms. André filed a complaint against Matimekush-Lac John Nation Innu (the “Nation”), her former employer. She alleged that she was discriminated against on the ground of her disability by the Nation while she was in its employ as a fitness room attendant. She also alleged that she was harassed on the ground of sex. The Tribunal allowed her complaint.
First, the Tribunal determined that she indeed had a disability related to her mental health. Ms. André presented abundant medical evidence to support her diagnosis. Second, the Tribunal acknowledged that Ms. André is a woman and identifies as such.
The Tribunal then concluded that she was harassed by her supervisor, Mr. Pilot, between February 2017 and April 2017. Ms. André was able to establish Mr. Pilot’s toxic behaviour; Mr. Pilot was a controlling man who created an unhealthy work environment for the complainant. The Tribunal was also able to conclude that Ms. André was harassed because of her sex, among other reasons.
Ms. André also established that she was treated adversely during her employment and during her dismissal by the Nation. A few months after her sick leave began, the Nation decided to abolish her position. The Tribunal found that the abolition of the position was merely a pretext for terminating Ms. André’s employment. It also found that Ms. André’s disability was a contributing factor in the Nation’s behaviour
The Nation did not participate in the hearing and did not provide a defence.
The Tribunal ordered the Nation to pay Ms. André $17,000 for pain and suffering and $15,000 in special compensation. The payment of interest was ordered for both these amounts. The Tribunal also ordered the Nation to cease its discriminatory practices and to create policies concerning harassment and discrimination in the workplace. Lastly, the Tribunal ordered the Nation to provide all of its officers, directors, agents and employees with training on the new policies developed. The Nation had 12 months to comply with the Tribunal’s order.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation:
2021 CHRT 8
Date:
February 18, 2021
File No:
T2452/0920
[ENGLISH TRANSLATION]
Between:
Marie-Renée André
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Matimekush-Lac John Nation Innu
Respondent
Decision
Member:
Gabriel Gaudreault
Table of Contents
I. Context of the complaint 1
II. Preliminary remarks – The Nation’s lack of participation 2
III. Issue 3
IV. Discrimination law 3
V. Analysis 5
A. Prohibited grounds of discrimination (subsection 3(1) LCDP) 6
(i) Disability 6
(ii) Sex 8
B. Adverse effects and nexus to the prohibited grounds of discrimination (section 7 and paragraph 14(1)(c) of the CHRA) 9
(i) The facts 9
(ii) Harassment (paragraph 14(1)(c) of the CHRA) 17
(iii) Adverse differential treatment in the course of employment (section 7 of the CHRA) 20
VI. The Nation’s defence and presumption (section 15 and 65 of the CHRA) 23
VII. Remedies 24
A. Lost wages and expenses incurred (paragraph 53(2)(c) of the CHRA) 24
(i) Wage losses for 2017, 2018 and 2019 24
(ii) Future wage losses 28
(iii) NBP repayments 30
B. Damages for pain and suffering (paragraph 53(2)(e) of the CHRA) 32
C. Special compensation (subsection 52(3) of the CHRA) 34
D. Interest (subsection 53(4) of the CHRA) 38
VIII. Public interest remedies (paragraph 52(2)(a) of the CHRA) 40
IX. Decision 42
I. Background of the complaint
[1] This is a decision of the Canadian Human Rights Tribunal (the “Tribunal”) disposing of the complaint of Marie-Renée André (the “Complainant”) against Matimekush-Lac John Nation Innu (the “Respondent” or the “Nation”) under sections 7 and 14 of the Canadian Human Rights Act (the “CHRA”).
[2] Ms. André is of Innu origin and a member and resident of the Nation, which is located north of the City of Sept-Îles, Quebec. Ms. André alleges that she was discriminated against on the ground of her disability by her former employer, the Nation, while she was in its employ (section 7 of the CHRA). She also alleges that she was harassed by her supervisor on the ground of sex and that the Nation did not provide her with a harassment-free work environment (section 14(c) CHRA).
[3] The Canadian Human Rights Commission (the “Commission”) participated fully in the Tribunal hearing and supports Ms. André’s claims.
[4] The Nation did not appear in the proceedings before the Tribunal, nor did it attend the hearing. It did not participate in the proceedings at all, despite numerous attempts by the parties and the Tribunal to contact it. The Tribunal therefore proceeded by default. The Respondent’s absence from the proceedings is discussed in Section II of this decision.
[5] The hearing was held on January 13 and 14, 2021, by videoconference, in order to comply with the government restrictions in place as a result of the health crisis affecting Canada and the rest of the world.
[6] The parties collaborated with the Tribunal in preparing for this virtual hearing, which went off without a hitch. The Tribunal had issued specific rules to manage the virtual hearing, the documentary evidence, the filing of exhibits, the participation of witnesses, the presentation of final arguments and the filing of case law. The parties complied with its instructions. They did not indicate experiencing any major difficulties with the use of videoconferencing, and the quality of the sound and video was fine.
[7] In light of the evidence presented by Ms. André and the Commission at the hearing, the Tribunal finds that the complaint is substantiated (subsection 53(2) of the CHRA).
II. Preliminary remarks on Nation’s lack of participation
[8] The Tribunal finds it necessary to make some preliminary remarks regarding the Respondent’s lack of participation in the Tribunal’s proceedings. The Tribunal issued an interlocutory decision on January 6, 2021, detailing the various steps taken to contact the Respondent and the various documents that were mailed to it.
[9] To summarize, the Tribunal received Ms. André’s complaint on December 23, 2019. The Complainant and the Commission filed their Statement of Particulars in June 2020. The Tribunal and the parties attempted to contact the Nation by various means, including fax, telephone, email and even mail, but to no avail.
[10] On September 28, 2020, the Tribunal sent Réal McKenzie, the Nation’s current chief, and the Nation’s Band Council representatives a letter, informing them that the Nation was implicated as the respondent in a complaint before the Tribunal and that a hearing would be held on January 13 and 14, 2021. The Tribunal asked the Nation to communicate promptly with the Registry to discuss the situation. On October 6, 2020, the letter was picked up by the Chief himself. Purolator’s proof of receipt forms part of the Tribunal’s official record. The Nation did not respond.
[11] The Tribunal sent a second letter, also by mail, to Réal McKenzie, the Nation’s chief, and the Nation’s Band Council representatives on November 28, 2020. The letter included a notice of hearing officially informing the Nation of the hearing dates of January 13 and 14, 2021, and shared all the information the Respondent, or its representative, would need to connect to the hearing, which was to be held by videoconference. The Chief received the Tribunal’s letter personally on December 8, 2020. The Canada Post proof of delivery forms part of the Tribunal’s official record. The Nation did not respond.
[12] The Commission also sent the Respondent two mailings, including a motion to expand the complaint and for leave to amend, and exhibits in support of the motion, a summary of a Tribunal conference call, the official notice of hearing, and a binder containing exhibits that were to be filed as evidence at the hearing. The Commission filed proof of delivery of these two mailings, which were received by Réal McKenzie personally on December 10 and 23, 2020, in the Tribunal’s official record. The Nation did not respond.
[13] Despite efforts to contact the Respondent, as well as the mailing of various items of correspondence and an official notice of hearing to the Nation’s chief, the Respondent did not attend the Tribunal hearing on January 13 and 14, 2021. In light of the circumstances, the Commission therefore asked the Tribunal to proceed in the Nation’s absence.
[14] The Tribunal agreed with the Commission. The Tribunal finds that the Respondent, through its Chief, was officially notified on a number of occasions that the hearing would take place on January 13 and 14, 2021.
[15] In order to comply with the principles of natural justice and procedural fairness, the Tribunal was required to give the Nation a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations (subsections 48.9(1) and 50(1) of the CHRA). The Respondent, though officially notified, chose not to avail itself of this opportunity.
[16] The Tribunal is therefore satisfied that the Respondent received proper notice of the hearing, and that is why it was able to proceed in its absence, as prescribed by rule 9(8) of the Canadian Human Rights Tribunal’s Rules of Procedure (03-05-04) (the “Rules”).
III. Issue
[17] The issue in this complaint is clear and simple: was Ms. André discriminated against by the Nation, her employer, or any of the agents under its responsibility, contrary to section 7 and paragraph 14(c) of the CHRA, on the grounds of her disability or sex?
IV. Discrimination law
[18] The purpose of the CHRA is to give all individuals 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 (section 2 of the CHRA).
[19] It is trite law that the complainant must first discharge their burden of proof on a balance of probabilities. The complainant must show a prima facie case, one 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” (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536, at paragraph 28 [Simpsons-Sears]).
[20] More specifically, Ms. André must establish on a balance of probabilities
(1) that she has one or more prohibited grounds of discrimination under subsection 3(2) of the CHRA (in this case, sex and disability);
(2) that she has experienced an adverse impact at the hands of the Respondent contrary to section 7 (in the area of employment) and paragraph 14(c) (harassment in matters related to employment) of the CHRA; and
(3) that the prohibited ground or grounds of discrimination was or were a factor in the adverse impact;
(See also Moore v. Bristish Columbia (Education), 2012 SCC 61 (CanLII), at paragraph 33 [Moore], and Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 789 (CanLII), at paragraph 63 [Bombardier]; Simpsons‑Sears, at paragraph 28).
[21] Proof of intention to discriminate is not required, nor is it necessary to demonstrate that the prohibited ground was the sole factor in the adverse impact suffered by Ms. André (Bombardier, at paragraphs 40 and 44).
[22] The Tribunal has repeatedly stated that discrimination is generally practiced neither overtly nor intentionally. The Tribunal must therefore consider all the circumstances of the complaint in determining whether there is a subtle scent of discrimination (Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) [Basi]).
[23] The Tribunal may therefore draw inferences from circumstantial evidence when the evidence offered in support of the allegations make such an inference more probable than the other possible inferences or hypotheses. That said, circumstantial evidence must be tangibly related to the impugned decision or conduct of the respondent (Bombardier, at paragraph 88).
[24] Furthermore, when the Tribunal has to determine whether a complainant has met the burden of proof for their case, it has to consider the evidence in its entirety, including that filed by the respondent, as appropriate. Consequently, it may, among other things, decide that the complainant failed to meet their burden of proof if the evidence presented is not sufficiently complete or if the respondent was able to present evidence that, for example, refutes the Complainant’s allegation (Dulce Crowchild v. Tsuut’ina Nation, 2020 CHRT 6 (CanLII), at paragraph 10; Brunskill v. Canada Post Corporation, 2019 CHRT 22 (CanLII), at paragraphs 64 and 65 [Brunskill]; Nielsen v. Nee Tahi Buhn Indian Band, 2019 CHRT 50 (CanLII), at paragraph 47 [Nielsen]; Polhill v. Keeseekoowenin First Nation, 2019 CHRT 42 (CanLII), at paragraph 58; Willcott v. Freeway Transportation Inc., 2019 CHRT 29 (CanLII), at paragraph 12 [Willcott]).
[25] Conversely, if the complainant is able to meet their burden of proof, the respondent may rely on one of the defences codified in section 15 of the CHRA, or limit its liability, as appropriate, under subsection 65(2) of the CHRA. In this case, the Nation, by its absence, neither raised a defence nor limited its liability.
[26] It is with these principles in mind that the Tribunal will analyze the evidence Ms. André and the Commission presented to it at the hearing.
V. Analysis
[27] The Tribunal recognizes the efforts and contribution made by Ms. André in the Tribunal process and at the hearing despite her health problems. With the full and comforting support of her representative and friend, Martine Gagnon, Ms. André showed great perseverance and courage in pursuing her complaint before the Tribunal right to the end.
[28] The Tribunal is also of the view that the testimony of Ms. André is compelling. Despite the fact that Ms. André’s mother tongue is Innu, she expressed herself easily in French. She testified with emotion and sensitivity before the Tribunal. Her testimony was accompanied by gestures and intonations that made it possible to clearly see and understand the actions and attitudes against her, particularly those of her supervisor. Despite all of this, she showed restraint and did not exaggerate the facts, and nothing in the evidence allows the Tribunal to conclude that her credibility should in any way be questioned.
[29] As a whole, the evidence submitted by Ms. André tips the balance of probabilities in her favour, and there is no need for the Tribunal to go over each event in detail. By analyzing the evidence presented by the Complainant and the Commission in its overall context, the Tribunal is able to conclude, on a balance of probabilities, that Ms. André suffered adverse treatment in the course of her employment and was dismissed on the ground of her disability (section 7 of the CHRA), and that she was harassed by her supervisor on the ground of her sex (paragraph 14(c) of the CHRA).
[30] The Tribunal will focus on the most relevant and useful evidence in making its decision (Turner v. Canada (Attorney General), 2012 FCA 159 (CanLII), at paragraph 40; Constantinescu v. Correctional Service Canada, 2020 CHRT 3 (CanLII), at paragraph 54).
A. Prohibited grounds of discrimination (subsection 3(1) CHRA)
(i) Disability
[31] Ms. André filed extensive evidence at the hearing supporting the existence of a disability. To this end, she filed several medical assessments from different doctors as well as letters from her psychologists.
[32] The evidence reveals that Ms. André was diagnosed with adjustment disorder with depressed mood and generalized anxiety as a result of the harassment she suffered at the hands of her supervisor. Ms. André's first diagnosis was made by Dr. Mathieu Foster in his report of April 18, 2017. This first diagnosis was made when Ms. André went on sick leave in early April 2017 as a result of the psychological distress she suffered in connection with her work environment.
[33] Dr. Foster detailed the effects on Ms. André’s health, including not only anxiety, but also insomnia, a panic disorder and decreased concentration. She was prescribed medication and visits every two weeks with either her psychologist or doctor were recommended.
[34] Two other doctors, Claude Lafortune and Josée Larochelle, both confirmed a similar diagnosis on May 9 and July 14, 2017, respectively, as supported by the medical reports filed at the hearing. Dr. Foster also saw the Complainant again on June 20, 2017, and reconfirmed the diagnosis of an adjustment disorder, adding a diagnosis of PTSD (“post-traumatic stress disorder”). Ms. André was on sick leave during this time and had been so since April 4, 2017.
[35] In 2019, Ms. André was still suffering from mental health problems. On July 9, 2019, Dr. Larochelle signed a form for the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”) in which she stated that Ms. André’s major depression had resurfaced. Dr. Larochelle maintained her diagnosis of PTSD. On August 27, 2019, another form was completed by another doctor, who essentially provided the same information as Dr. Larochelle.
[36] The Tribunal also had an opportunity to review the reports of the Complainant’s psychologists, Annik Riverin and Danielle Descent. Three reports were filed in evidence, dated April 3, 2017, September 21, 2018 and August 26, 2019. The reports reviewed by the Tribunal support the doctors’ diagnoses and provide further details on the Complainant’s psychological state.
[37] In that regard, the symptoms detailed by Ms. Riverin and Ms. Descent are consistent. They both explain that the impact on Ms. André was multi-faceted. Moreover, the various doctors who treated Ms. André also described these symptoms in their various reports. In her testimony, Ms. André, often speaking with great emotion, also explained the symptoms associated with her mental health condition.
[38] Among other things, Ms. André suffered and still suffers from some of these symptoms, including distress, sadness, recurring fatigue, loss of appetite, attention and concentration problems, insecurity, low self-esteem and self-deprecation, insomnia and nocturnal awakenings, tremors, hopelessness, loss of interest, and at times, suicidal thoughts.
[39] This having been explained, the Tribunal notes that the definition of “disability” is found in section 25 of the CHRA and provides as follows:
disability means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
[40] The Tribunal wrote as follows in Temple v. Horizon International Distributors, 2017 CHRT 30 (CanLII), at paragraphs 38 to 40:
[T]he ground of “disability” has been subject to interpretation, most notably in Audet v. Canadian National Railway, 2005 CHRT 25, at para. 39 [Audet]. Audet reiterates the Federal Court of Appeal’s interpretation of “disability” in Desormeaux v. Corporation of the City of Ottawa, 2005 FCA 31, at paragraph 15, and defines this term as “any physical or mental impairment that results in a functional limitation, or that is associated with a perception of impairment”.
[41] The same reasoning was adopted in Duverger v. 2553-4330 Québec Inc. (Aéropro), 2019 CHRT 18 (CanLII), at paragraphs 181 to 183 [Duverger], and in Brunskill, at paragraphs 71 and 72.
[42] Based on the evidence presented, the Tribunal is satisfied that Ms. André and the Commission have demonstrated, on a balance of probabilities, that Ms. André had a disability within the meaning of the CHRA, specifically with respect to her mental health (paragraph 3(1) of the CHRA).
(ii) Sex
[43] Ms. André also invokes sex, the fact of her being a woman, as a prohibited ground of discrimination in the harassment she allegedly suffered at the hands of her supervisor. There is little to be said regarding this ground since Ms. André identifies as a woman (subsection 3(1) of the CHRA).
[44] With these elements established, the Tribunal can now proceed to the next stage of the analysis set out in Moore, above.
B. Adverse impact and connection to the prohibited grounds of discrimination (section 7 and paragraph 14(1)(c) of the CHRA)
(i) The facts
[45] Ms. André worked as a fitness room attendant for the Nation, her employer, for a number of years. More specifically, the centre is located in the Matimekush-Lac John community, also called Schefferville, Quebec, as Ms. André explained.
[46] Ms. André worked there full-time for seven years, beginning in 2010. But it was not until June 2012 that the Nation recognized her as a permanent employee. This gave her the opportunity to receive more employment benefits.
[47] As a fitness room attendant, she welcomed clients and prepared fitness and nutrition plans. She was also responsible for the centre’s maintenance.
[48] Ms. André was the sole employee of the fitness room, which was located in a multi-purpose building. The room was adjacent to a community hall, where other women performed work, including cleaning. The Complainant explained that community members used the community hall for various events and gatherings.
[49] Until February 2017, Ms. André reported to the Nation directly. She explained that she had never had any problems in her job and dealt with the Council directly at that time. However, in February 2017, Ms. André found out that the Council had hired a new supervisor to, among other things, supervise her. This supervisor was Posho Pilot (“Mr. Pilot”).
[50] It was on Mr. Pilot’s arrival that the situation in Ms. André’s work environment began to deteriorate, eventually leading to her sick leave, which began on April 4, 2017. Consequently, less than three months went by between Mr. Pilot’s starting his job and Ms. André’s going on sick leave.
[51] At the hearing, Ms. André testified about various events that happened at work during this period (between February and early April 2017) and also described Mr. Pilot’s actions and attitude.
[52] One of the first events that occurred was related to Ms. André’s schedule. Mr. Pilot had wanted to change her work schedule and reduce her hours for no apparent reason even though she had always worked the same schedule and the same number of hours when she reported to the Council. Ms. André had to involve the Council to ensure that her schedule remained the same, which was contrary to Mr. Pilot’s wishes and intentions.
[53] Despite this, on March 24, 2017, Mr. Pilot changed the Complainant’s schedule unilaterally and without warning, contrary to the Council’s instructions. In her own words, Ms. André described the schedule as [translation] “mean”. In other words, she believed that Mr. Pilot simply wanted to provoke and demean her by giving her impossible schedules.
[54] In addition, Ms. André explained that during the three months she worked under Mr. Pilot’s supervision, he would, now and then, threaten to cut her hours. Mr. Pilot even ordered her to clean without pay after her eight-hour workday.
[55] Ms. André also testified that Mr. Pilot supervised her in the fitness room. He wanted to ensure that the Complainant was always at work. If the Complainant’s car was not in the parking lot, he would storm back into the building to find out where she was. If she was at work, he would comment that her car was not in the parking lot.
[56] Mr. Pilot also accused Ms. André of stealing and of breaking various items in the fitness room. She testified that on one occasion Mr. Pilot had left money lying on the counter in the fitness room. Not knowing who it belonged to, Ms. André had taken the money and put it behind the counter, underneath the sink. She had wanted to make sure that no none took the money. Mr. Pilot had then accused her of stealing the money, and Ms. André had explained to him that she had simply put it away and had told him where to find it. She told the Tribunal that she was certain that her supervisor had been testing her, provoking her, and trying to catch her in the act and trap her.
[57] On another occasion, he also accused her of stealing his lunch, a sub sandwich. He shouted at her and asked if she had stolen his lunch. After this event, Mr. Pilot had forbidden the Complainant to enter the kitchen, which was in the community hall next to the fitness room.
[58] Ms. André would warm up her meals there, as this was where the microwave was. Since she was now prohibited from going into the kitchen and using the microwave, she set up her own microwave in the electrical room, which was located in the hallway between the fitness room and the community hall. When Mr. Pilot became aware of this set-up, he simply locked the electrical room, preventing the Complainant from accessing it. As a result, Ms. André was prevented from warming up her meals while she was at work. Ms. André therefore had to take a few minutes during her break to quickly go home and warm up her meals, in the knowledge that she was being monitored by her supervisor and that she was not allowed to leave her workplace.
[59] Mr. Pilot categorically refused to allow Ms. André to leave the building during her working hours, including during her meal breaks, literally sequestering her at work. This left Ms. André in a no-win situation. She explained at the hearing that when she was at work, she felt suffocated: she felt, as she put it, as if she were [translation] “in prison”.
[60] Ms. André also testified that Mr. Pilot often told her in discussions that he was [translation] “the boss”. He would raise his voice and yell at her. He would get angry, and bang on the desk or doorframes.
[61] The Complainant testified that she was afraid of him and feared when he would show up at the workplace. She would cry after he left, while trying to hide her tears from the clients who came to use the fitness room. Ms. André was afraid of Mr. Pilot, his yelling, his outbursts of rage and his overbearing manner. She described her supervisor as being big and burly, and noted that you could easily tell when he was not in a good mood.
[62] In her testimony before the Tribunal, she clearly mimicked the looks he would give her, as well as his banging his fist on the table and on doorframes. Ms. André cries when she talks about this: her former supervisor’s moods, attitudes and actions still affect her today.
[63] Mr. Rodrigue, a former fitness room client, testified about Ms. André’s distress at the hearing. He explained that he had seen Ms. André crying because he regularly came to the fitness room to work out.
[64] Mr. Rodrigue’s testimony was compelling, sincere and full of empathy for what the Complainant had gone through. He confirmed that Ms. André had told him about several events she had experienced with Mr. Pilot, but he admitted that he had never witnessed any of those events or Mr. Pilot’s attitudes. That said, he corroborated that Ms. André had confided in him at the time of the events.
[65] It is important to mention that Ms. André explained that Mr. Pilot also acted aggressively towards the other women who worked in the community hall and particularly the employees who did the cleaning. She stated that another woman, an employee of the community hall, came to her to talk about the psychological distress she was suffering as a result of Mr. Pilot’s actions.
[66] For example, the employee told her that while she was cleaning, Mr. Pilot had run his finger along the wall to make sure it was clean and dust-free. Unhappy with the result, he had, in an authoritarian tone, ordered her to redo her job. Ms. André explained that she and the other employee had shared their respective experiences with each other. Ms. André took the time to tell the Tribunal that while she had complained about Mr. Pilot’s actions, the other women working in the building had not.
[67] Ms. André also recounted that she had sometimes found herself in awkward situations because of Mr. Pilot’s orders. She had been afraid to disobey him. For example, Mr. Pilot was responsible for renting out the community hall to other members of the community. He was responsible for unlocking the doors, which he sometimes did not do. The people who had rented the hall would then come to the room next door, the fitness room. As indicated above, the two rooms are connected by a corridor.
[68] The Complainant then candidly explained that she was able to let the renters go through the corridor to get to the community hall. However, when Mr. Pilot decided that enough was enough, he forbade her to let anyone to take that way. Ms. André felt uncomfortable with this decision knowing that it would mean Elders waiting outside in the cold for Mr. Pilot to unlock the door to the community hall.
[69] Ms. André recounted another series of events involving the use of the Internet in the fitness room. She explained that she needed the Internet for her work because she sometimes had to do research in order to prepare training and nutrition plans for her clients. The Internet helped her find answers for the fitness room clients. According to Ms. André, the Council had installed the Internet in the fitness room to allow her to do her work.
[70] But Mr. Pilot decided to cut off the Internet access, telling her that if she had access, she would be surfing the Web all the time. Mr. Pilot effectively deprived Ms. André of the Internet.
[71] Ms. André stated that one day she saw Mr. Pilot and a technician who was in the process of installing the Internet in the building. She had asked him if he could set up the Internet in her office. Mr. Pilot replied that this was impossible. Not believing him, Ms. André spoke directly with the technician, who confirmed that it was possible. She stated that Mr. Pilot had then, as she put it, [translation] “glowered” at her.
[72] Ms. André complained to the Council, the Chief and the Council members about Mr. Pilot’s depriving her of the Internet. The Council agreed with her and asked her to inform Mr. Pilot that she should have access. But Mr. Pilot was determined to deprive her of the Internet because he carried the Council-owned router through which the network could be accessed in the building around with him. When he passed Ms. André with the router in his hands, he would look at her, smile and laugh. The Complainant definitely viewed this as mockery and contempt on the part of her supervisor. Ms. André spoke to a human resources officer, Ms. d’Arc, who confirmed to her, as the Council had done, that she was entitled to Internet access.
[73] The events involving the router had a significant impact on the Complainant, who could not take it anymore. Ms. André testified that following her supervisor’s actions, she had fainted on coming home. She explained that she had gone home, but that she could not remember how she got there. She had fallen to the ground, and everything had gone black. She had regained consciousness and sat up, but had not understood what was happening.
[74] Ms. André testified that she had cried a lot following these events and that she contacted her friend Martine Gagnon on March 28, 2017, while Ms. Gagnon was in Rouyn-Noranda, Quebec. Ms. André had told her that she wanted to give everything up and that she had had enough of her job because of Mr. Pilot’s actions. Ms. Gagnon had suggested that she go and see a doctor and a psychologist for help.
[75] Ms. André testified that she had approached the Nation’s Council, the Chief and the Council members on a number of occasions to tell them of the difficulties she was having with Mr. Pilot. She had sought out the Council to discuss the problems surrounding her schedule and her Internet set-up, among other things. The Tribunal notes that Ms. André also confided in one of the Nation’s Council members, Paco Vachon, who lived across the street from the fitness room. Mr. Vachon had told her to forget about Mr. Pilot, and no further action was taken.
[76] She had also turned to Noël André, who is not only her brother, but also a member on the Nation’s band council, to discuss the situation. Mr. André had advised her to talk to the Council. Ms. André noted that she understood that her brother had been in a difficult position, as not only a Council member but also her brother.
[77] The evidence does not show that the Nation intervened in any way with Mr. Pilot. Yet, Ms. André complained about various events on a number of occasions and confided in Mr. Vachon, a Council member.
[78] Ms. André finally managed to get in touch with her psychologist, Ms. Descent, at her home, while the latter was not with the community. Ms. Descent advised her not to make any rash decisions and to go and see the psychologist who was there, Ms. Riverin, until she herself came back to work in the community.
[79] Ms. André also saw a doctor, and it was he who placed her on sick leave as of April 4, 2017. Ms. André was on sick leave for several months, during which time she continued to see the various physicians in the community, namely Dr. Foster, Dr. Larochelle and Dr. Lafontaine, as well as the psychologists Ms. Riverin and Ms. Descent.
[80] The Complainant applied to her insurance provider, SSQ Financial Group, for disability insurance while she was on sick leave, which was granted. She was paid disability insurance for several months, which gave her an income despite the circumstances.
[81] That said, Ms. André testified that between June and July 2017 her insurance provider advised her that she should apply to the CNESST instead, since it believed that her absence from work was the result of a work accident or an employment injury. It was then that Ms. André, with the support of Dr. Larochelle, filled out the forms for making a claim to the CNESST. The CNESST rejected her claim, a decision that Ms. André challenged before the Tribunal administratif du travail.
[82] Administrative Judge Daniel Louis finally rendered a decision dated January 21, 2019 (file number 651223-09-1711), which was filed in the Tribunal’s record. He found in favour of Ms. André and overturned the CNESST decision. Mr. Louis stated that the Complainant had indeed suffered an employment injury on April 4, 2017, that she was therefore entitled to compensation and that she would retroactively receive the amounts to which she was entitled.
[83] Ms. André stated, however, that during the summer of 2017, while her insurance provider and the CNESST were arguing over who should pay for her absence from work, she found herself in a precarious financial situation. Since her insurance provider had terminated her benefits by referring her to the CNESST, which rejected her initial claim, Ms. André found herself without an income.
[84] In August 2017, she therefore turned to the Nation, her employer, to ask for assistance and financial support to get through these difficult times. While she was still absent from work, the Complainant received information that the Nation wanted to abolish her position as a fitness room attendant. She explained that her employer's announcement of the abolition of her position had angered her given that she was about to ask for financial assistance.
[85] Ms. André continued in this vein and testified that she had gone to the Band Council quite regularly to inquire about the situation. However, she came up against contradictory information from the Respondent, sometimes being told that her position was not abolished, and other times being told that her position would indeed be abolished.
[86] This confusion affected Ms. André because she felt that she had to fight for what was owed to her. She knew that if her position was abolished, not only would she receive compensation for the termination of her employment, but she would also be able to claim employment insurance. The Tribunal notes that Ms. André was struggling financially and that, in order to support herself, she even had to withdraw money from her retirement savings.
[87] The evidence also reveals that it took some time for the Nation to make a final decision. Ms. André attributes this delay to the fact that the Nation was intending to adopt a new termination of employment and compensation policy. She would have received less money under this future policy than under the policy then in effect.
[88] Ms. André, who was still suffering from mental health problems and was still on sick leave, explained that she finally went to the Nation’s Council and, as she says, [translation] “threw a fit” in front of the Council. She testified that she had wanted it to end and that she could no longer handle the uncertainty she was in. She had wanted the Nation to make a decision, even if it meant abolishing her position, so that she could move on. After this event, the then chief of the Nation, Mr. Ambroise, went to Ms. André’s parents to tell them about the situation and their daughter’s behaviour.
[89] Ms. André testified that because her parents are Elders and [translation] “they are her life”, as she put it, she had not wanted to involve them in her issues with her employer or tell them about her health problems. She had not wanted to hurt or worry them. However, Mr. Ambroise had met with her parents to tell them about the situation without telling the Complainant.
[90] Ms. André’s father contacted her, telling her that he was aware that she had gone to the Council and had [translation] “screamed” at them. He told her that the Chief had confirmed that her position was not abolished, which contradicted what Nation officials had told her previously.
[91] The following day, the Complainant went to the Council offices to meet with Mr. Ambroise. She insisted on meeting with him, and he asked her to leave his office. She asked him why he had met with her parents and why he had told them that her position had not been abolished, which contradicted the other information she had received. The Chief insisted that she leave his office, telling her that she was [translation] “pig-headed” and that her financial problems were not his problem.
[92] Despite the Chief’s comments and the contradictory information from the Nation, Ms. André received a letter on September 29, 2017, informing her that her position as a fitness room attendant had been abolished and terminating her employment. Ms. André was therefore entitled to receive compensation for the termination of her employment, which caused her further problems. She explained that the various employees responsible for providing her with her records of employment and the amounts owed made a number of errors. Ms. André had to go to the Council’s offices several times to have the various errors made by the administration corrected. Eventually, an employee threatened to call the police if she did not leave the office when all Ms. André wanted was to have her records of employment corrected.
[93] The Complainant, who is still grappling with mental health issues, explained that those were particularly challenging times for her. The Tribunal understands that despite the abolition of her position, which could have allowed Ms. André to bring closure to this part of her life, she continued to have issues with her former employer.
[94] Ms. André was nonetheless able to receive employment insurance benefits when her position was abolished.