The Administrative Labour Tribunal (ALT) clarified the terms under the Act respecting labour standards (Act) that provide the new time limit for filing a psychological harassment complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), in its recent decision, Dinu v. 9227-3754 Québec Inc. (Dinu) (available in French only).
Previously, Section 123.7 of the Act provided that any complaint concerning psychological harassment had to be filed within 90 days of the last incidence of the offending behaviour. However, the Act to amend the Act respecting labour standards and other legislative provisions mainly to facilitate family-work balance, adopted by Quebec’s National Assembly on June 11, 2018 (Revised Act), extends this deadline from 90 days to two years. For more information about the Revised Act, please see our July 2018 Blakes Bulletin: Quebec’s Revised Act respecting labour standards: New Challenges for Employers.
The CNESST had indicated that it would analyze all new complaints of psychological harassment already filed and accept the filing thereof if the last incidence of the offending behavior occurred no later than two years prior to the coming into force of the Revised Act. Therefore, according to the CNESST, any complaint concerning behaviour of psychological harassment having occurred no later than June 12, 2016 would be admissible, as it would fall within the new two-year time limit provided for under the Revised Act.
In Dinu, the complainant had reported psychological harassment on January 31, 2018, but the last incidence of the offending conduct had occurred on October 13, 2016. The employer argued that the complaint was inadmissible, as the time limit then provided for under the Act had expired. The ALT hearing regarding this preliminary application for prescription was held on August 23, 2018, after the coming into force of the Revised Act.
The ALT found that without a clear indication from the legislator regarding the retroactive effect of the Revised Act, an extinguished right cannot be revived. Therefore, if the 90-day time limit for the last incidence of the offending conduct has expired prior to June 12, 2018, the right to file a complaint will not be revived or extended under the Revised Act.
Notwithstanding the Revised Act, and pursuant to Section 15 of the Act to establish the Administrative Labour Tribunal, the ALT maintains the power to extend a time limit or relieve a person from the consequences of failing to act within the allotted time in certain circumstances. For example, the ALT may extend a time limit if it believes that the person could not reasonably have acted within that time and if no other party suffers serious harm as a result.