HR Bulletin — January 2026
Catherine Deslauriers* and Frédérique Boutin*
Summary
The authors analyze the interplay between claims for psychological injury and recourses for psychological harassment, which creates legal challenges for employers. They explain that the coexistence of distinct regimes, with different criteria and time limits, calls for a proactive strategy so that a failure to contest is not interpreted as an implicit acceptance of the allegations. They discuss the importance of rigorously documenting the steps taken and clarifying the employer’s position in order to limit the impact on how the file is presented and to preserve the employer’s rights in a context of parallel recourses.
Introduction
In recent years, Quebec’s labour law landscape has been transforming at a rapid pace. Legislative reforms are multiplying, weaving increasingly close ties between labour legislation and legislation aimed at protecting employees’ health and safety, particularly on the psychological level. This evolution creates a complex landscape in which recourses overlap and compound one another.
Employers are therefore increasingly called upon to manage claims for workplace injuries of a psychological nature before the Commission des normes, de l’équité, de la santé et de la sécurité du travail, occupational health and safety division (CNESST, OHS division). These claims are frequently accompanied by complaints or grievances for psychological harassment based on the Act respecting labour standards (ALS), which are ultimately heard by the Administrative Labour Tribunal or a grievance arbitrator.
Although these recourses fall under distinct regimes, they are frequently based on the same alleged facts, raising major legal issues, particularly with respect to the need to contest psychological injuries linked to allegations of harassment.
I – Two regimes, a single set of facts
A workplace injury of a psychological nature is recognized by the CNESST, OHS division, when a worker demonstrates, on a preponderance of the evidence, that his or her psychological injury results from a sudden and unforeseen event attributable to any cause, arising out of or in the course of the person’s work, and that a causal relationship is established between the diagnosis made and the alleged events1.
Harassment, for its part, rests on vexatious conduct manifested through repeated hostile or unwanted behaviour, words, acts or gestures, which affects the employee’s dignity or psychological or physical integrity and which results in a harmful work environment for that employee2. A single serious instance of such conduct may also constitute psychological harassment if it causes such harm and produces a harmful effect on the worker.
Despite the presence of a distinct burden of proof for these two recourses, they generally still rest on the same set of facts. Yet the way they are handled by the competent authorities differs considerably and can create a puzzle for employers, all the more so since the time limits for filing a claim for a workplace injury and for filing a complaint are not the same3. Indeed, a complaint denouncing psychological harassment filed with the CNESST, labour standards division, is subject to a two-year time limit running from the last manifestation of that harassment4, whereas a claim for a workplace injury filed with the CNESST, OHS division, must be filed within six months of its occurrence5, except where sexual violence is involved.
II – A genuine puzzle for employers
The coexistence of distinct time limits and criteria for the recognition of a psychological injury as compared with a harassment complaint can create ambiguous situations regarding the employer’s position. A situation may well meet the requirements to be characterized as a workplace injury without meeting those of psychological harassment. If the employer fails to clarify its position or to make appropriate representations to the CNESST, OHS division, its failure to contest or react could wrongly have repercussions on how its position on the facts is interpreted.
In practice, it is increasingly common to see the CNESST, OHS division, accept a workplace injury of a psychological nature even before a formal complaint of psychological harassment has been filed under the ALS. This particular sequence of events complicates file management for the employer, since decisions rendered by the CNESST, OHS division, are often very brief and do not necessarily specify the facts or conduct that led to the injury being accepted.
It is precisely in this context that it becomes essential for the employer to intervene proactively. In the absence of detail in the CNESST, OHS division’s decision, any failure to contest could later be interpreted as acceptance of the underlying allegations, particularly those resembling psychological harassment. A prompt and strategic intervention is therefore required in order to preserve the employer’s rights and ensure the consistency of its position in the event that a complaint is subsequently filed under the ALS.
III – Practical issues for employers
Numerous practical issues arise for employers who must simultaneously manage claims for psychological injury and complaints for psychological harassment.
As soon as a CNESST medical certificate is received for a work stoppage linked to an alleged psychological injury, the employer must verify whether the employee is able to provide his or her version of the facts for the investigation, in the event that no complaint has been filed internally or no process is actually underway. If the employee is unable to cooperate, this situation should be documented internally and reported to the CNESST, OHS division, when the employer’s notice and claim for reimbursement is submitted. In such a case, it is important to clearly state that the employer was informed of the situation through the medical certificate and that it will conduct its investigation once the worker has regained the capacity to participate. As a general rule, in the absence of an investigation, the employer should refrain from commenting on the facts or disputing the worker’s version, and should clearly indicate that it was not informed of the situation and will investigate.
In addition, the employer may request a copy of the worker’s claim in order to begin its investigation, even if not all of the facts alleged by the worker are yet known. There is a right of access under the AIAOD6.
It may also happen that an internal investigation has begun but has not been completed by the time the employee reports an alleged psychological injury. In such a situation, it remains essential for the employer to document all steps already taken, to specify precisely the stages completed, including the presence of interim measures, and to explain the reasons why the investigation was suspended or may continue at a later date. This rigour in record-keeping helps demonstrate the employer’s good faith and justify the conduct of the process to the relevant authorities, in the event of a complaint under the ALS.
Given the two-year time limit for filing a complaint under the ALS, and notwithstanding the psychological injury alleged, the employer must keep all of this in mind and continue to act in accordance with its obligations under the ALS — namely, to put an end to any harassment that is actually occurring — as well as its policy for preventing workplace harassment.
Another important issue concerns the employer’s position with respect to the nature of the declared injury. It may happen that the employer acknowledges the existence of a psychological workplace injury — for example, due to a work overload — while maintaining that no harassment occurred within the meaning of the ALS. In such a context, it is essential for the employer to clearly distinguish, with the CNESST, OHS division, between the grounds for the injury that it acknowledges and those that it does not, whether when formulating its comments in the employer’s notice and claim for reimbursement, or as soon as the admissibility decision is issued.
In doing so, the employer will be able to explain precisely, in the context of a recourse under the ALS, why it did not contest the CNESST, OHS division’s admissibility decision on the workplace injury, by pointing out that its failure to contest related solely to the recognition of the psychological injury linked to factors other than harassment. This clarification will help prevent the employer’s silence from being wrongly interpreted as an implicit acceptance of harassment allegations, thereby protecting its position should the file develop further.
Should an admissibility decision be rendered by the CNESST, OHS division, the employer must decide whether or not to contest it. It is possible that the worker in question will simply not file a psychological harassment complaint at that time. It may therefore be worthwhile to protect one’s rights by contesting the decision as a preventive measure.
IV – Consequences for available remedies
The presence or absence of a workplace injury also affects the remedies that may be sought by an employee in the context of a complaint for psychological harassment.
Indeed, section 123.16 of the ALS significantly limits the powers of the Administrative Labour Tribunal under section 123.15 of the ALS when the Tribunal “considers it probable” that the harassment resulted in a workplace injury. The wording used in this section is not insignificant, since even where no claim has been filed with the CNESST, OHS division, for a workplace injury, as soon as the Tribunal believes there is a basis for a workplace injury, its remedial powers will be reduced.
In such a case, the Tribunal may not:
- order the employer to pay the employee an indemnity up to a maximum equivalent to the salary lost;
- award moral damages to the employee;
- order the employer to fund the psychological support required by the employee, for a reasonable period that it determines.
This restriction on remedies where a workplace injury has been recognized by the CNESST, OHS division, underscores how important it is for the employer to fully understand the legal implications of each regime. It also reinforces the need for a coherent and proactive strategy in managing files where the alleged facts may give rise to parallel recourses.
Moreover, while section 123.16 of the ALS limits the power of the Administrative Labour Tribunal, sections 438 and following of the AIAOD could limit it further still. Indeed, an employee cannot bring a liability action against his or her employer, a fellow worker or a mandatary on account of a workplace injury. The scope of this immunity has been interpreted broadly, notably because the no-fault workplace accident compensation scheme is the product of a social compromise.
Conclusion
Managing claims for psychological injury alongside allegations of harassment demands vigilance and rigour. Employers must distinguish between the underlying bases, document every step, and ensure transparency.
A nuanced analysis of the facts is essential, as is careful management of official communications.
Finally, where an external claims manager or a prevention mutual is involved, coordination with HR is crucial to ensure consistency, avoid misunderstandings, and protect the employer’s reputation.
Footnotes
* Me Catherine Deslauriers, lawyer, is a partner in the Labour and Employment Law group at BCF Business Law. Me Frédérique Boutin, lawyer, is at the same firm and in the same group. Both practise in the areas of workplace injury management, occupational health and safety, and labour and employment law.
- Act respecting industrial accidents and occupational diseases (hereinafter “AIAOD”), CQLR, c. A-3001, s. 2.
- Act respecting labour standards (hereinafter “ALS”), CQLR, c. N-1.1, s. 81.18.
- Note that another time limit may also apply where the worker is in a unionized environment, as they could file a grievance, the time limits for which are governed by the applicable collective agreement. As such, the time limit for filing such a grievance could extend beyond two years.
- ALS, s. 123.7.
- AIAOD, ss. 270 and 271.
- AIAOD, ss. 270 and 272.
This text was originally published in La Référence RH by Thomson Reuters, under citation EYB2026BRH2822
