Publications

Access to Justice for Sexual Harassment Victims:
The Impact of Béliveau St-Jacques on Female Workers' Right to Damages

(Translation)

Katherine Lippel
Diane Demers¹

The research and publication of this study were funded by Status of Women Canada's Policy Research Fund. This document expresses the views and opinions of the authors and does not necessarily represent the official policy or opinion of Status of Women Canada or the Government of Canada.

March 1998

Status of Women Canada is committed to ensuring that all research produced through the Policy Research Fund adheres to high methodological, ethical, and professional standards. The research must also make a unique, value-added contribution to current policy debates, and be useful to policy-makers, researchers, women's organizations, communities, and others interested in the policy process. Each paper is anonymously reviewed by specialists in the field, and comments are solicited on:

• the accuracy, completeness and timeliness of the information presented;
• the extent to which the analysis and recommendations are supported by the methodology used and the data collected;
• the original contribution that the report would make to existing work on this subject, and its usefulness to equality-seeking organizations, advocacy communities, government policy-makers, researchers and other target audiences.

Status of Women Canada thanks those who contributed to this peer review process.

Canadian Cataloguing in Publication Data

Lippel, Katherine

Access to justice for sexual harassment victims: the impact of Béliveau St-Jacques on female workers' right to damages

Text in English and French on inverted pages.
Title on added t.p.: L'accès à la justice pour des victimes de harcèlement sexuel.
Includes bibliographical references.
Issued also in electronic format through the Internet computer network.
ISBN 0-662-63438-1
Cat. no. SW21-23/1998

1. Sexual harassment of women -- Law and legislation -- Quebec (Province).
2. Sex discrimination in employment -- Law and legislation --Quebec (Province).
I. Demers, Diane L.
II. Canada. Status of Women Canada.
III. Title.
IV. Title: The impact of Béliveau St-Jacques on female workers' right to damages.

HD6060.5C3L56 1998 344.714'014133 C98-980080-6E

Project Manager: Sarah Bélanger, Status of Women Canada
Publishing Coordinator: Angela McLaughlin, Status of Women Canada
Translation: Société Gamma Inc. and 575 Productions Ltd.

For more information contact:

Research Directorate
Status of Women Canada
360 Albert Street, Suite 700
Ottawa, ON K1A 1C3
telephone: (613) 995-7835
facsimile: (613) 957-3359
TDD: (613) 996-1322
Email: research@swc-cfc.gc.ca

PREFACE

Status of Women Canada's Policy Research Fund was instituted in 1996 to support independent, nationally relevant policy research on gender equality issues. In order to determine the structure and priorities of the Policy Research Fund, Status of Women Canada held consultations from March to May 1996 with a range of national, regional and local women's organizations, researchers and research organizations, community, social service and professional groups, other levels of government, and individuals interested in women's equality. Consultation participants indicated their support for the Fund to address both long-term emerging policy issues as well as urgent issues, and recommended that a small, non-governmental external committee would play a key role in identifying priorities, selecting research proposals for funding, and exercising quality control over the final research papers.

As an interim measure during the fiscal year 1996-1997, consulation participants agreed that short-term research projects addressing immediate needs should be undertaken while the external committee was being established to develop longer-term priorities. In this context, policy research on issues surrounding the Canada Health and Social Transfer (CHST) and access to justice were identified as priorities.

On June 21, 1996, a call for research proposals on the impact of the CHST on women was issued. The proposals were assessed by Status of Women Canada and external reviewers. The research projects selected for funding in this area focus on women receiving social assistance, economic security for families with children, women with disabilities, the availability and affordability of child care services, women and health care, and women's human rights.

The call for research proposals on access to justice was issued on July 18, 1996. Also assessed by Status of Women Canada and external reviewers, the selected policy research projects in this area include a study of abused immigrant women, lesbians, women and civil legal aid, family mediation, and the implications for victims of sexual harassment of the Supreme Court ruling in Béliveau St-Jacques.

The objective of Status of Women Canada's Policy Research Fund is to enhance public debate on gender equality issues and contribute to the ability of individuals and organizations to participate more effectively in the policy development process. We believe that good policy is based on good policy research. We thank all the authors for their contribution to this objective.

A complete listing of the research projects funded by Status of Women Canada on issues surrounding the Canada Health and Social Transfer and access to justice is provided at the end of this report

SUMMARY

This paper examines the significance of the Supreme Court of Canada's decision in Béliveau St-Jacques and studies its possible consequences, both legal and political, and the repercussions these consequences may have on working women who are victims of sexual harassment in Quebec, whether subject to Quebec or federal law.

After analyzing the Court's judgment in this case, the paper looks at the law which previously governed efforts by victims of sexual harassment to recover damages and claim other remedies. These included claims before the Commission des droits de la personne [Quebec's human rights commission] and the Tribunal des droits de la personne [Quebec's human rights tribunal] as well as actions filed in superior courts of law. The paper then examines the treatment of working women who have filed claims with the Commission de la santé et de la sécurité du travail (CSST) [Quebec's workers' health and safety board], seeking compensation for physical or psychological injury caused by sexual harassment. Thirdly, the paper examines the exclusion of civil actions in Quebec's Act respecting industrial accidents and occupational diseases to determine to what extent victims of sexual harassment in the workplace have lost their right to sue for damages as a result of the Béliveau St-Jacques decision.

We conclude that in the aftermath of Béliveau St-Jacques, the rights of victims of sexual harassment are highly uncertain and that it is currently impossible to give adequate advice to those victims or their representatives about the rights and the remedies that are available to them and appropriate to their needs. If victims of sexual harassment in the workplace are to avoid becoming victims of the confusion and uncertainty of the current law, an amendment to the Quebec Charter of Human Rights and Freedoms is urgently required.

1 Professors in the Faculty of Law, UQAM, Box 8888, Centre Ville Branch, Montreal, Quebec H3C 3P8. The authors wish to thank Ginette Valois, Solange Pronovost and Marie-Claire Lefebvre for their assistance in the preparation of this report.