Sexual violence – A first decision on the topic!

HR Bulletin — April 2025

Catherine Deslauriers* and Marc-André Groulx*

Summary

In a significant decision in which, through a series of injunctions, an employer was able to protect its employees from problematic conduct on the part of a former employee, the authors explore the new concept of “sexual violence” as well as the employer’s new duty to protect its employees against any form of harassment that may originate from third parties, both introduced in 2024 into the Act respecting labour standards.

Introduction

In the fall of 2024, a large company operating in the food industry obtained a significant legal victory in the protection of its employees’ health and safety¹. Through a permanent injunction, it was able to protect its employees, among other things, against sexual violence perpetrated by a former employee.

I – Harassment via social media and inappropriate conduct

The former employee, believing he had been unjustly dismissed, began contacting plant employees as well as members of management through Facebook. He sent unsolicited messages accompanied by an inappropriate photo — an explicit image of an intimate body part. In addition, some of the content posted on his Facebook profile suggested the possibility of physical attacks against employees, further amplifying fears within the company.

A first ten-day interim injunction was obtained to prevent this individual from communicating with certain individuals and from coming within fifty metres of the plant’s offices. However, this was not enough to stop the individual from engaging in further inappropriate conduct, as he continued to post increasingly alarming messages on Facebook targeting certain employees.

Faced with this escalation, a stricter interlocutory injunction was obtained. This injunction required the individual to remove his Facebook posts and to stop communicating with employees who no longer wished to be contacted by him, and it authorized the police to use the force necessary to enforce it, in addition to reiterating the main conclusions of the first injunction. This injunction had a more deterrent effect.

Finally, a permanent injunction was subsequently obtained, confirming the measures of the interlocutory injunction and thereby closing the file.

Among the various conclusions of the decision rendered in connection with the permanent injunction, the individual was ordered to stop communicating, by any means whatsoever, with employees or officers of the company who had expressed, or would in the future express, a wish not to be contacted by him. In addition, the injunction ordered the former employee not to come within fifty metres of the company’s premises.

II – Legal recognition of sexual and psychological violence

Through this series of injunctions (interim, interlocutory and permanent), the court recognized that the former employee’s conduct — notably sending a photo of an intimate body part to several employees — constituted a form of sexual violence. The other conduct complained of also constituted a possible impairment of the employees’ psychological and physical health. The threats made via social media were also characterized as conduct amounting to harassment against the company and its employees, thereby posing a risk of serious and irreparable harm. Indeed, harm to employees’ health, should it occur, cannot be compensated through monetary damages. The court could therefore act to protect the health and safety of the employees.

III – A significant legal precedent

This decision is the first to recognize, in law, sexual violence — a new definition introduced into the Act respecting occupational health and safety² (“AOHS”) on March 27, 2024, following the adoption of the Act to prevent and combat psychological harassment and sexual violence in the workplace³. This new definition marks an important advance in the protection of employees’ health and safety in the workplace.

It should be noted that the burden of establishing the presence of sexual violence is lower than that required to establish the presence of psychological harassment or sexual harassment.

Psychological harassment is defined in section 81.18 of the Act respecting labour standards⁴ (“ALS”) as:

Vexatious behaviour that manifests itself through repeated hostile or unwanted conduct, words, acts or gestures, that affects the employee’s dignity or psychological or physical integrity, and that results in a harmful work environment for that employee. For greater precision, psychological harassment includes such conduct where it takes the form of words, acts or gestures of a sexual nature.

A single serious instance of such conduct may also constitute psychological harassment if it causes such harm and produces a continuing harmful effect on the employee.

Whereas sexual violence is defined in section 1 of the AOHS as:

Any form of violence targeting sexuality or any other misconduct manifested notably through unwanted gestures, practices, words, behaviours or attitudes of a sexual nature, whether occurring on a single occasion or repeatedly, which includes violence relating to sexual and gender diversity.

Thus, while inappropriate conduct may qualify as sexual violence, it does not always fall within the definition of harassment, even though the two concepts are often interrelated. For example, a sexual joke directed at a person, made on a single occasion, could constitute sexual violence within the meaning of the AOHS without necessarily constituting harassment within the meaning of the ALS.

IV – Employer obligations

Under the AOHS, employers are required to protect the health and safety of their employees⁵. This responsibility includes implementing measures to protect workers exposed to situations of psychological or physical violence, or sexual violence, and, where applicable, putting an end to such harmful conduct.

In addition, the employer must provide a healthy, respectful work environment free from any form of harassment. Since September 2024, the employer must put an end to any form of harassment originating from “any person,” which includes the company’s employees and officers, but also third parties.

The injunction obtained against an individual from outside the organization clearly highlights the legislature’s intent to protect employees regardless of the aggressor’s status. The Therrien case illustrates this intent well: the individual was considered, under the ALS, a third party to the company, since he was no longer employed by it.

In light of the recent amendments to the ALS, it is important to keep this tool in mind whenever a situation that could jeopardize employees’ health and safety arises from the conduct of a third party. Depending on the circumstances, it may be appropriate for an employer to seek an injunction.

---

Notes

* Mes Catherine Deslauriers and Marc-André Groulx, lawyers, are partners in the Labour and Employment Law group at BCF Business Law. They wish to thank Ms. Gabrielle Bisson, a lawyer at the same firm, for her contribution to this article.

• Boulangerie Canada Bread ltée c. Therrien, 2024 QCCS 4047, EYB 2024-556464
• CQLR c S-2.1.
• SQ 2024, c 4.
• CQLR c N-1.1.
• See in particular section 51 of the AOHS.