By Édith Charbonneau and Antoine Aylwin
One of your unionized employees files a complaint for psychological harassment and requests to access your investigation report several years later. When you refuse, the employee turns to the Quebec information and privacy board to get that access. But does the information and privacy board have jurisdiction, or could a grievance arbitrator have jurisdiction over such access issues?
This is what the Court of Quebec had to decide in ArcelorMittal Montréal Inc. c Lemieux. Although the facts of this case are unique to Quebec, the courts, administrative tribunals, and labor arbitrators in Canada have grappled with these types of jurisdictional issues for years.
In September 2005, an employee filed a psychological harassment complaint against his employer and a claim before Quebec’s health and safety board. Both claims were resolved in the spring of 2007.
In October 2008, the employee asked his employer for a copy of the investigation report relating to his psychological harassment complaint. When the employer refused to give him a copy of the document, the employee filed an application at the Quebec information and privacy board.
The employer argued on a preliminary basis that the board lacked jurisdiction to deal with the employee’s application. Instead, the employer argued that a grievance arbitrator had jurisdiction since the parties had specifically provided for the issue of psychological harassment in the workplace in their collective agreement. The board disagreed and dismissed the employer’s preliminary argument. Not happy with the result, the employer appealed to the Court of Quebec.
The Court of Quebec agreed with the employer—the dispute fell under the jurisdiction of a grievance arbitrator. In making its decision, the court explained that:
- An Act respecting access to documents held by public bodies and the protection of personal information does not give the board absolute and exclusive jurisdiction over all matters of access to information;
- The Labour Code grants a grievance arbitrator the power to summon a witness to produce a document;
- Even if a collective agreement does not contain specific provisions on psychological harassment, such a matter will automatically be covered by a collective agreement as is set out in An Act respecting Labour Standards; and
- A grievance arbitrator has broader jurisdiction than the board due, among other things, to his expertise in psychological harassment and his power to interpret and apply any law when ruling on a grievance.
Lesson for employers
Although an application has been filed for the judicial review of this decision, the court’s decision establishes that in matters of access to information in the context of a psychological harassment complaint in a unionized setting, it is the grievance arbitrator that has the jurisdiction to make decisions.
This is consistent with other decisions across Canada granting arbitrators the jurisdiction to deal with matters of employment standards (covered by employment standards legislation), human rights (covered by human rights legislation), and other employment-related entitlements.