Tell Me Where It Hurts: Workplace Sexual
Harassment Compensation and the
Regulation of Hysterical Victims
Finn Makela*
Informed by a feminist analysis, the author examines a
new development in the legal responses to workplace sexual
harassment in Quebec. Sexual harassment has been recognized
as a psychological injury, compensable through the provinces
Commission des accidents de travail. This classification was
confirmed in the Bliveau-St-Jacques case, in which an alleged
victim of workplace sexual harassment filed a civil suit seeking
damages from her employer based on both the civil liability
regime and the antidiscrimination and anti-harassment clauses
of the Quebec Charter of Human Rights and Freedoms. The
Supreme Court of Canada found that Quebecs Act Respecting
Industrial Accidents and Occupational Diseases (AIAOD)
extinguishes the right to all civil remedies for workplace
injuries, including punitive damages in cases of intentional and
illegal violations of a protected right. This approach was
subsequently entrenched in the new psychological harassment
provisions of the Labour Standards Act.
The author discusses the implications of Bliveau-St-
Jacques for victims of sexual harassment, particularly women.
While the decision goes far in recognizing the systemic nature
of sexual harassment in the workplace, it also somewhat
illogically includes violations of fundamental rights within the
ambit of occupational hazards. Responding to sexual
harassment through the no-fault workplace compensation
scheme causes the distress and anguish experienced by sexual
harassment victims to be assessed as a medical condition.
Women become the objects of an administrative regime that
causes them to suffer further affronts to their dignity. The
author contrasts the legal treatment of sexual harassment with
that of a different harm to dignitydefamation, which
constitutes a narrow exception to the exclusion of civil
remedies under the AIAOD.
les accidents du
travail et
responsabilit civile et
Lauteur, inspir par une analyse fministe, tudie une
nouvelle addition larsenal juridique disponible aux victimes
de harclement sexuel au travail au Qubec. Depuis 1996, le
harclement sexuel a t reconnu comme un dommage
psychologique, duquel la victime peut tre indemnise par la
voie dun recours devant la Commission des accidents du
travail. Cette classification trouve sa source dans laffaire
Bliveau-St-Jacques, dans laquelle une personne, supposment
victime de harclement sexuel au travail, a entam une
poursuite judiciaire contre son employeur en se basant sur le
rgime de
les clauses anti-
discriminatoires et anti-harclement de la Charte qubcoise
des droits et liberts. La Cour suprme du Canada a statu que
la Loi sur
les maladies
professionnelles du Qubec privait la victime de tout droit
une rparation pour les dommages subis base sur le rgime de
responsabilit civile, incluant tout dommage punitif pour une
atteinte illicite et intentionnelle un droit garanti par la Charte.
Par la suite, cette approche a t solidifie dans les nouvelles
dispositions de la Loi sur les normes du travail visant le
harclement psychologique.
Lauteur discute des implications de larrt Bliveau-St-
Jacques pour
sexuel,
particulirement les femmes. Bien que larrt reconnaisse la
nature systmique du harclement sexuel au travail, il classifie
galement, quelque peu illogiquement, les violations de droits
fondamentaux dans la catgorie des accidents du travail.
Tenter de redresser les dommages du harclement sexuel par le
biais dun systme de compensation des accidents du travail
sans gard la faute mne lvaluation de la souffrance des
victimes en tant que condition mdicale. Par ce fait, les femmes
deviennent les objets dun rgime administratif les obligeant
subir de nouvelles atteintes leur dignit. Lauteur contraste le
traitement juridique du harclement sexuel avec un type
diffrent datteinte la dignit : la diffamation, qui constitue
une exception restreinte lexclusion des rparations bases sur
le rgime de responsabilit civile.
les victimes de harclement
* Attorney at the firm Melanon, Marceau, Grenier et Sciortino (Montreal); B.A., M.A.
(philosophy), LL.B./B.C.L. I wish to thank Prof. Desmond Manderson of McGill University and the
two anonymous reviewers for their helpful comments on earlier drafts of this paper.
Finn Makela 2006
To be cited as: (2006) 51 McGill L.J. 27
Mode de rfrence : (2006) 51 R.D. McGill 27
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[Vol. 51
Introduction
I. Historical Background
A. The Workplace Accident Compensation Scheme
B. Compensation for Psychological Injuries
II. Bliveau-St-Jacques
A. Background
B. The Supreme Court Decision
C. Consequences: Intentional Harassment as Accident
D. Expansion of the Doctrine
III. Regulating Victims
A. The CSST as Castle
B. Foucault and the Medicalization of Dignity
C. The Hysterical Turn
IV. Private Injuries and Public Harms
A. The Defamation Double Standard
B. Dignity for Some
Conclusion
29
30
30
30
32
32
33
34
35
37
37
39
41
41
42
44
45
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F. MAKELA WORKPLACE SEXUAL HARASSMENT COMPENSATION
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Introduction
In 1987, Catharine MacKinnon remarked: Sexual harassment, the event, is not
new to women. It is the law of injuries that it is new to.1 In Quebec, almost twenty
years later, a new development in legal responses to sexual harassment has emerged.
Sexual harassment is a workplace injury. It is the consequences of this development
and the assumptions about women and their bodies that underpin it that I will explore
in what follows.
I begin with a historical overview of the workplace accident regime in place in
the province of Quebec, paying particular attention to the treatment of psychological
injuries in relation to the civil law category of moral damages. I then provide a critical
reading of the Supreme Court of Canadas decision in Bliveau-St-Jacques v.
Fdration des employes et employs de services publics inc.,2 in which it was
decided that the statutory compensation regime displaces the remedies that would
otherwise be available to victims of workplace sexual harassment under Quebecs
Charter of Human Rights and Freedoms.3
My reading of the Bliveau-St-Jacques decision forms the basis of a feminist
critique of the workplace accident compensation scheme. The critique mobilizes
Michel Foucaults concept of a disciplinary discourse that regulates individuals, in
order to make the argument that the compensation system is part of an administrative
apparatus that symbolically and materially constitutes women in such a way that their
emotional life is inseparable from their bodies.
In the final section, I interrogate the only currently accepted exception to the
displacement of Quebec Charter remedies established in Bliveau-St-Jacques:
damage to reputation. This exception, I argue, bolsters my earlier claims about the
workplace accident compensation regime, in that it allows compensation for a
uniquely un-embodied harm.
1 Catharine A. MacKinnon, Feminism Unmodified (Cambridge, Mass.: Harvard University Press,
1987) at 103 [MacKinnon, Feminism]. MacKinnon was among the first to argue that tort law provides
an inadequate legal response to sexual harassment and that a statutory antidiscrimination scheme
would better protect victims of sexual harassment. See Catharine A. MacKinnon, Sexual Harassment
of Working Women (New Haven, Conn.: Yale University Press, 1979) [MacKinnon, Harassment].
2 [1996] 2 S.C.R. 345, 136 D.L.R (4th) 129 [Bliveau-St-Jacques cited to S.C.R.].
3 R.S.Q. c. C-12 [Quebec Charter].
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I. Historical Background
[Vol. 51
A. The Workplace Accident Compensation Scheme
The Act Respecting Industrial Accidents and Occupational Diseases4 constitutes
a no-fault regime similar in nature to an insurance scheme. The first step in the
schemes creation was the 1909 adoption of the Act respecting the responsibility for
accidents suffered by workmen in the course of their work, and the compensation for
injuries resulting therefrom.5 This act withdrew workplace accidents from the general
law of civil responsibility, which was unsuited to the problems posed by
industrialization.6 The concept of fault was replaced with the notion of occupational
risk, described by one commentator as [l]e rsultat dun compromis social
historique entre des forces contradictoires.7 Workers were relieved of the burden of
showing that their employers were at fault for injuries sustained in the workplace. In
exchange, they renounced the right to full compensation, receiving instead a partial
indemnity, the cost of which was distributed across employers.
In 1928, application of the scheme was dejudicialized with the creation of the
Commission des accidents de travail (CSST).8 The accident fund, consisting of
employer contributions, became the source of indemnification in 1931 with the
passing of the Act Respecting Workplace Accidents.9 After more than fifty years of
relative stability, the regime underwent a major revision in 1985.10
B. Compensation for Psychological Injuries
Unlike in the common law,11 psychological injury has not historically been
problematized in the civil law tradition. Thus, rather than basing compensation for
harm on a Cartesian view of the self, in which body and mind are treated as radically
distinct aspects of personhood justifying differential treatment by the law, the subject
4 R.S.Q. c. A-3.001 [AIAOD].
5 S.Q. 1909, c. 66.
6 See generally Jean-Louis Baudouin & Patrice Deslauriers, La responsabilit civile, 6th ed.
(Cowansville, Qc.: Yvon Blais, 2003) at paras. 941-45. See also Katherine Lippel, Le droit des
accidents du travail une indemnit: analyse historique et critique (Montreal: University of
Montreal, 1986); Bliveau-St-Jacques, supra note 2 at 398; Jean-Claude Paquet, Laffaire Bliveau-
St-Jacques: Lquilibre entre lintegrit du rgime de rparation des lsions professionnelles et le droit
des dommages exemplaires en vertu de la Charte des droits et liberts de la personne in
Dveloppements rcents en droit de la sant et scurit au travail (Cowansville, Qc.: Yvon Blais,
1997) 121.
7 Paquet, ibid. at 131.
8 Bliveau-St-Jacques, supra note 2.
9 S.Q. 1931, c. 100.
10 Workers Compensation Act, R.S.Q. c. A-3.
11 See e.g. Joanne Conaghan & Wade Mansell, The Wrongs of Tort, 2d ed. (London: Pluto, 1999) at
34-44.
31
illustrates
that developing compensation schemes
F. MAKELA WORKPLACE SEXUAL HARASSMENT COMPENSATION
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of the civil law is an organic whole bearing personality rights whose integrity is
recognized as inviolable.12 Commission of a civil fault entails liability for reparation
of the injury caused, whether it is bodily, moral, or material.13
Early doctrinal treatment of European workplace accident legislation in civilian
jurisdictions14
recognized
psychological injury, despite textual reference to lintgrit ou la sant du corps
humain.15 The flexible concept of moral damages was consequently not transposed
without adaptation. Instead, psychological injury related to workplace accidents was
described in medical terms, viewing the brain rather than the mind as the site of
damage. Thus, [l]a folie est une altration du cerveau, un traumatisme, au mme titre
que la rupture dun muscle, la perforation dune artre ou la fracture dun os.16 As a
corollary, moral injuries were described as medical conditions such as dementia,
hysteria, hypochondria, neurasthenia, et cetera.17
Despite this historical willingness to recognize psychological injuries within the
framework of workplace accident compensation schemes, acceptance of claims based
on harassment came relatively late in Quebec.18 Early jurisprudence often dealt with
the traumatic effects of witnessing violence (as in the case of police officers19 and
prison guards20), though illnesses resulting from a work environment poisoned by
harassment were the basis of at least some of the early claims.21
The first case in which a psychological injury caused by workplace harassment
was indemnified was decided in 1984.22 The appeal board of the CSST eventually
12 See e.g. art. 4 C.C.Q.
13 Art. 1457 C.C.Q.
14 See e.g. Adrien Sachet, Trait thorique et pratique de la lgislation sur les accidents du travail,
t. 1, 6th ed. (Paris: Sirey, 1921) for an analysis of Austrian, German, Swiss, and French legislation.
15 Ibid. at paras. 256, 266 [emphasis added].
16 Ibid. at para. 265.
17 See ibid.
18 See generally Reine Lafond, Lindemnisation des lsions psychologiques lies au travail:
dernires tendances in Dveloppements rcents en droit de la sant et scurit au travail
(Cowansville, Qc.: Yvon Blais, 1997) 245.
19 See e.g. Bouchard c. Sret du Qubec, [1988] C.A.L.P. 702.
20 See e.g. Linch c. Canada (Ministre du Solliciteur gnrale), [1987] C.A.L.P. 590.
21 See e.g. Re Leduc (1983), Longueuil 2335 (BRCSST), cited in Maurice Drapeau, Le harclement
sexuel au travail (Cowansville, Qc.: Yvon Blais, 1991) at 192; Re Nadeau (1986), Cte Nord 8023
195 (BRCSST). For an exhaustive review of the jurisprudence, see Bernard Cliche et al., Le
harclement et les lsions psychologiques (Cowansville, Qc.: Yvon Blais, 2005).
22 Leduc c. Les Centres daccueil du Haut St-Laurent (1982), 8518466 (BRCSST), cited in
Katherine Lippel, Droit et statistiques : rflexions mthodologiques sur la discrimination systmique
dans le domaine de lindemnisation pour les lesions professionnelles (2002) 14 C.J.W.L. 362 at 370,
n. 22. See also Status of Women Canada, Laccs la justice pour des victimes de harclement
sexuel : limpact de la dcision Bliveau-St-Jacques sur les droits des travailleuses lindemnisation
pour les dommages by Katherine Lippel & Diane Demers (Ottawa: Status of Women Canada, 1998)
at 17. But see Accidents du travail76, [1983] C.A.S. 641, cited in Drapeau, ibid. at 192-93 (where
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confirmed that workplace harassment could lead to a psychological injury justifying
indemnification in 1988.23
II. Bliveau-St-Jacques
A. Background
In Bliveau-St-Jacques, the Supreme Court pronounced on the fit between the
AIAOD, the droit commun24 of the civil law, and the Quebec Charter. The result, as
has often been remarked,25 was to introduce as much confusion as clarity in situating
cases of psychological injury generally, and sexual harassment specifically.
Ms. Bliveau-St-Jacques claimed that she had been the victim of sexual
harassment in her workplace, perpetrated both by her immediate supervisor and by
her employer, who refused to believe her complaints regarding the matter and
eventually fired her. Allegedly, as a consequence of the initial harassment and her
employers actions, Ms. Bliveau-St-Jacques suffered from (what was diagnosed as)
anxiety, insomnia, and asthenia. She filed for compensation with the CSST and was
rejected. A review board found her eligible for compensation, but by that time, Ms.
Bliveau St-Jacques had already filed a civil suit in the Superior Court seeking
compensatory and punitive damages.
The civil suit was based on the civil liability regime of the Civil Code of Lower
Canada26 as well as sections 10 and 10.1 of the Quebec Charter, which are the anti-
discrimination and anti-harassment clauses respectively. Compensatory damages
were sought for moral harm, injury to physical and psychological health, and lost
wages. Punitive damages were sought under the second paragraph of section 49 of
the Quebec Charter, which provides for them in case of intentional and illegal
violation of an enumerated right.
The defendants filed a motion to dismiss by way of declinatory exception for lack
of jurisdiction rationae materiae on the grounds that section 438 of the AIAOD
excludes civil remedies for employment injuries compensated by the no-fault regime.
The section states:
the Commission des affaires sociales found that, in principle, psychological trauma is covered by the
Act but that there was no link between the illness and the workplace on the facts of the case).
23 Anglade c. Montral (Communaut urbaine), [1988] D.T.E. 88T-730 (CALP) (confirming
indemnification of a police officer who suffered depression due to racial harassment at work). See also
Sauveteurs et victims dactes criminels69, [1988] C.A.S. 694 (in which the Commission des affaires
sociales allowed an indemnification for harassment). See Socit canadienne des postes c. C.A.S. (21
October 1994), Montreal 500-090-01481-894 (C.A.) (confirming an indemnification for harassment).
24 To avoid the obvious potential confusions, I use the French term droit commun here to indicate
the ius commune, often translated in English as the common law.
25 See e.g. Paquet, supra note 6; Lippel & Demers, supra note 22.
26 Art. 1053ff. C.C.L.C. (now art. 1457ff. C.C.Q.).
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F. MAKELA WORKPLACE SEXUAL HARASSMENT COMPENSATION
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No worker who has suffered an employment injury may institute a civil
liability action against his employer by reason of his employment injury.27
The Superior Court rejected the motion, saying that even though some compensatory
damages were precluded, the court had jurisdiction to hear a claim for moral and
exemplary (punitive) damages.28 This decision was confirmed by a divided bench
on appeal,29 and an appeal from that decision was filed to the Supreme Court.30
B. The Supreme Court Decision
On behalf of the majority of the Supreme Court, Justice Gonthier dismissed the
appeal, finding that the AIAOD extinguishes the right to all civil remedies for
workplace injuries, including punitive damages for discriminatory harassment.
At the heart of the decision is the analysis of the second paragraph of section 49
of the Quebec Charter, which provides for punitive damages in cases of intentional
and illegal violations of a protected right.31 Justice Gonthier found that this second
paragraph is dependent on the first paragraph of the same section, which provides for
compensatory damages. Unlike the Canadian common law of torts,32 violation of a
right protected by the Quebec Charter is a fault that engages civil liability for any
damages suffered as a consequence of the violation. Thus, since the remedy in the
first paragraph of section 49 of the Quebec Charter is coextensive with civil
remedies, and since civil remedies are displaced by the AIAOD, the Quebec Charter
remedy is also displaced.33 Furthermore, since an award of punitive damages under
the second paragraph of section 49 is dependent on the award of compensatory
27 AIAOD, supra note 4, s. 438.
28 Bliveau-St-Jacques c. Fdration des employes et employs de services publics inc. (17 April
1989), Saint-Franois (Sherbrooke) 450-05-000524-880 (C.S.).
29 Bliveau-St-Jacques c. Fdration des employes et employs de services publics inc., [1991]
R.J.Q. 279 (C.A.) [Bliveau-St-Jacques (Appeal)].
30 Though the employer desisted after receiving leave to appeal, Ms. Bliveau-St-Jacques filed a
motion to continue the appeal, which was granted. It is for this reason that Ms. Bliveau-St-Jacques is
the appellant. Ironically, had she not filed to continue, the Court of Appeals decision to allow her
claim for punitive damages would have stood.
31 Though punitive damages are generally foreign to the civil law, they can be claimed in cases
where specifically provided for by statute. See art. 1621 C.C.Q. See also Pierre-Gabriel Jobin with
Nathalie Vzina, Baudouin et Jobin: Les obligations, 6th ed. (Cowansville, Qc.: Yvon Blais, 2005) at
paras. 875-77.
32 Compare Seneca College v. Bhadauria, [1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193. In this
decision, the Court found that violation of a protected right is not in itself an actionable tort
independent from the underlying conduct that constitutes the violation. See generally Lippel &
Demers, supra note 22 at 7 for a comparison of the common law of torts and Quebec civil liability
with regard to violations of fundamental rights.
33 Bliveau-St-Jacques, supra note 2 at 408-10.
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damages under the first paragraph, and since the compensatory damages are displaced
by the AIAOD, punitive damages are also displaced.34
It should be noted that the judgment did not pronounce on the definition of sexual
harassment, nor was it found that sexual harassment suffered at work constitutes a
compensable workplace injury under the AIAOD.35 Invoking the fact that the review
board decision was not contested, Justice Gonthier begins his judgment by claiming
that he will assume that sexual harassment and harassment in the workplace may be
the basis for a claim to the CSST under the AIAOD.36
C. Consequences: Intentional Harassment as Accident
Bliveau-St-Jacques has significant consequences both in the law and in the lives
of women. Despite Justice Gonthiers explicit refusal to decide whether injury
suffered as a result of sexual harassment in the workplace is covered by the AIAOD,
the judgment is seen as a confirmation of the nascent trend to compensate for
harassment.37 The implications of sexual harassment falling under the rubric of
employment injury are varied, and feminists can reasonably disagree about their
desirability.
First, one might regard the decision as long-overdue judicial recognition of the
systemic nature of sexual harassment in the workplace. On this reasoning, it is a step
away from the gendered nature of the AIAOD regime, extending its application to the
specific forms of injury suffered by women. The concepts of industrial injury and
occupational disease in the statute are gendered, in that they are based on a
conception of the workplace as a neutral terrain where dangers to workers are found
in objects (e.g., machinery, chemicals, etc.). This conception belies the everyday
reality of many women who experience the workplace as constitutively hostile, not
because it is some distinctive site of oppression, but because it is embedded within
the social structures and relations of a patriarchal society.38 Thus, including
compensation for women who suffer injuries due to this aspect of the workplace may
be a step forward.
Conversely, it may appear illogical to bring intentional violations of fundamental
rights within the ambit of a no-fault insurance scheme. On a symbolic level, it is
tantamount to legal recognition of workplace harassment as being the normative
34 Ibid.
35 See Paquet, supra note 6 at 126ff.
36 Bliveau-St-Jacques, supra note 2 at 398.
37 This view is not necessarily wrong. Since the Supreme Court cannot err as to jurisdiction, its
deference to the administrative tribunal should be interpreted as affirming that no jurisdictional error
was made. Thus, despite Gonthier J.s statement, it appears that the judgment implicitly accepts the
trend as, at a minimum, not patently unreasonable.
38 See e.g. Lippel & Demers, supra note 22 at 10-11. But see Lucie Lamarche, Dfinition du
harclement sexuel prohib sur les lieux de travail en droit canadien (1986) 2 Rev. jur. femme dr.
113.
35
F. MAKELA WORKPLACE SEXUAL HARASSMENT COMPENSATION
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equivalent of industrial accidents and occupational diseases. Thus, getting harassed is
just like getting your hand caught in a machine: an unfortunate accident. Evidently
this shifts attention away from the harasser and from the environment in which
harassment is made possible or even facilitated.39
Another consequence of the decision is the differential juridical treatment that
harassed workers are subject to, which depends exclusively on the impact of the
harassment on the victim. Women who are harassed but, for whatever reason, do not
suffer from effects that are expressible as a medical diagnosis, retain the full panoply
of civil recourses, including punitive damages. Victims who are diagnosed with a
medical condition caused by the harassment are limited to the indemnity provided by
the AIAOD. Thus, it is arguably those who suffer the most who are compensated the
least.40 Of course, the decision also raises the question of differential treatment of
women who are harassed in the workplace and those who are harassed elsewhere.41
Even more perverse is the incentive structure that this sets up for potential
harassers. The vicarious liability regime of the civil law42 does not apply to punitive
damages under section 49 of the Quebec Charter.43 Thus, if the harassment does not
constitute a workplace injury, the victim retains civil recourse not only against the
employer but also against the harasser. On the other hand, if the harassment results in
an injury, then the harasser (and not only the employer) is completely insulated by
section 442 of the AIAOD, which prohibits actions against other employees covered
by the regime.44 The lesson for harassers is: If youre going to harass, you better
make sure it hurts, lest you be liable!
D. Expansion of the Doctrine
There was considerable confusion within legal circles upon the reception of the
Bliveau-St-Jacques decision.45 Most important among them was the question as to
the scope of the exclusion of civil remedies for the violation of fundamental rights
suffered in the workplace. Is the civil recourse extinguished only if the victim is
indemnified, or is it the possibility of indemnification that displaces other remedies?46
39 See e.g. Paquet, supra note 6 at 150-51. See generally Lippel & Demers, supra note 22 at 10ff.
(arguing that human rights tribunals are more suited to dealing with sexual harassment).
40 See Drapeau, supra note 21 at 196-98.
41 See Lippel & Demers, supra note 22 at 11-12. See also Bliveau-St-Jacques (Appeal), supra note
29, Mailhot, J.A.
42 Art. 1463 C.C.Q.
43 See Louis Perret, De limpact de la Charte des droits et liberts de la personne sur le droit civil
des contrats et de la responsabilit au Qubec (1981) 12 R.G.D. 121 at 140, n. 48.
44 Supra note 4, s. 442. See Lippel & Demers, supra note 22 at 31.
45 See generally Lippel & Demers, ibid.
46 See ibid. at 25.
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This question was definitively answered by the Quebec Court of Appeal in
Genest v. Commission des droits de la personne et des droits de la jeunesse.47 The
complainant in this case was sexually harassed by her employer and sought
psychiatric treatment for the ensuing suffering. After taking sick leave, she eventually
resigned on the advice of her psychiatrist. She filed an action at the Commission des
droits de la personne et des droits de la jeunesse, which was then referred to the
Tribunal des droits de la personne.48 The tribunal claimed jurisdiction on the grounds
that the complainant had not been indemnified by the CSST and that therefore section
438 of the AIAOD, as interpreted in Bliveau-St-Jacques, did not apply. In addition to
compensatory damages, the tribunal awarded $2,000 in punitive damages and ordered
the harasser to write a letter of apology.
The Court of Appeal reversed the tribunals decision on the following grounds:
La prohibition de recours multiples contre lemployeur dune victime de
lsion professionnelle ne saurait dcouler du choix de cette dernire de recourir
ou non lindemnisation en vertu de la LATMP. Cette option ne lui est pas
offerte puisque larticle 438 LATMP lui dfend dintenter une action en
responsabilit civile en raison de sa lsion professionnelle. Toute autre
interprtation aurait pour effet de rendre optionnel le rgime dindemnisation de
la LATMP et de contourner linterdiction nonce larticle prcit.49
The court confirmed that the exclusion, as interpreted in Bliveau-St-Jacques, only
applies to civil liability, and that other remedies such as orders and injunctions are not
displaced.50 This must have been cold comfort for the complainant, since the court
went on to say that an order to write a letter of apology is too vague to be enforced
and therefore overturned this aspect of the tribunals decision as well.51
Whether the courts expansive interpretation of the exclusion of civil liability in
favour of the integrity of the workplace accident regime accurately represents the
intention of the legislator at the time section 438 of the AIAOD was adopted is, of
course, open for debate. What is clear, however, is that this approach has now been
entrenched by legislation. The new psychological harassment provisions of the
Labour Standards Act52 leave no doubt as to the legislators desire to see the AIAOD
take jurisdictional precedence with respect to awards of damages.53 As soon as a
commissioner of the Commission des relations du travail (or arbitrator in the case of
47 [2001] AZ-50082198 (Azimut), D.T.E. 2001T-99 (C.A.) [Genest cited to Azimut], leave to appeal
to S.C.C. refused, [2001] 2 S.C.R. vii.
48 Commission des droits de la personne et des droits de la jeunesse c. Genest (1997), R.J.Q. 1488,
D.T.E. 97T-509 (T.D.P.Q.).
49 Genest, supra note 47 at para. 20.
50 Ibid. at para. 22.
51 Ibid. at para. 24.
52 R.S.Q. c. N-1.1, ss. 81.18-20, 123.6-16.
53 Ibid. s. 123.16, para. 1.
F. MAKELA WORKPLACE SEXUAL HARASSMENT COMPENSATION
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unionized workplaces54) determines that it is probable that an alleged case of
harassment entailed an employment injury within the meaning of the AIOAD,
jurisdiction over all monetary remedies must be reserved but not exercised until the
CSST has decided the question.55
37
III. Regulating Victims
The decision in Bliveau-St-Jacques and its subsequent expansion in Genest
radically change the focus of legal responses to sexual harassment in the workplace.
Whereas, for all its failings,56 the civil liability approach directs attention to the
actions of the harasser, the workplace accident compensation regime posits the victim
as the site of regulation. More specifically, the victim becomes the object of a
Kafkaesque57 medico-legal administrative machine populated by experts whose job it
is to diagnose and compensate injury, rather than the subject of a legal structure that
recognizes and remedies the wrong that was done to her. The feelings of distress,
anguish, and alienation that can result from being victimized by reason of ones sex
are transformed into symptoms of mental illness for the purposes of indemnification.58
This section will proceed in three steps: first, I will provide a brief outline of the
actual functioning of CSST claims; second, I will argue that this process is an
example of what Foucault calls disciplinary discourse, through which individual
subjects are constituted as the objects of a regime; finally, I will draw a parallel with
nineteenth-century theories of womens bodies, maintaining that the CSST regime
reproduces the conception of womens bodies as canvasses on which their emotional
life is painted.
A. The CSST as Castle
Workers who the CSST determines have suffered an employment injury, defined
as an injury or disease arising out of or in the course of an industrial accident, or an
occupational disease,59 are entitled to an income replacement indemnity equal to
54 Ibid. s. 81.20. The application of this section to s. 123.16, para. 2 provides that the labour
arbitrator must reserve jurisdiction when he or she considers it probable that the psychological
harassment led to an employment injury within the meaning of the AIAOD.
55 Ibid. s. 123.16, para. 2.
56 See generally Conaghan & Mansell, supra note 11.
57 Of particular interest is that, during the time he wrote the novels The Trial and The Castle, Franz
Kafka worked in the statistical and claims department of the Workmans Accident Insurance Institute
in Prague. For a description of how Kafka viewed his work at the Institute, see Ernst Pawel, The
Nightmare of Reason: A Life of Franz Kafka (New York: Farrar Straus Giroux, 1984) at 190.
58 See Lippel & Demers, supra note 22 at 2.
59 AIAOD, supra note 4, s. 2.
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ninety per cent of their net annual salary.60 In order to collect this indemnity, however,
the worker must follow a protracted medico-legal procedure.
The worker must first consult a medical professional (called the physician in
charge), who must fill out a series of CSST forms attesting to the diagnosis,
treatment (if any), and expected date of return to work.61 The CSST may then require
a further examination by a health professional of its designation, to which the worker
must submit.62 The employer also has the right to have the worker evaluated by a
medical professional of the employers choosing.63 Once again, the worker must
submit to such an examination.64 If either the CSSTs or the employers designated
professional disagrees with any aspect of the reports submitted by the physician in
charge, then forms attesting to the disagreement and the reasons therefore are
submitted to the Bureau dvaluation mdicale.65 Once in possession of the totality of
the diagnoses and reports, the Bureau dvaluation mdicale either confirms or
quashes the diagnosis and other findings of the physician in charge.66 The decision of
the Bureau dvaluation mdicale binds the CSST. Note that the existence of a causal
relation between the injury diagnosed (if any) and the workplace is not decided by
any of these medical instancesonly the medical condition that will serve as the
basis for the claim is determined.67
Once the initial medical steps are taken, the CSST determines whether the worker
is eligible for compensation. In doing so, the diagnosis of the physician in charge (if
uncontested), or the Bureau dvaluation mdicale (if contested), is only one aspect
to be considered. The CSST must also find that the injury arose from, or in the course
of, employment.68 Should any interested party disagree with the decision of the CSST,
an application for review may be brought before an internal administrative review
board.69 If any interested party disagrees with the review, an appeal lies with the
Commission des lsions professionnelles (CLP).70 The CLP has exclusive
jurisdiction over appeals,71 but as with any administrative tribunal, applications for
judicial review may be made at the Superior Court in accordance with the normal
60 Ibid. s. 45.
61 Ibid. ss. 199-203.
62 Ibid. s. 204.
63 Ibid. s. 209.
64 Ibid. s. 210.
65 Ibid. s. 212.1.
66 Ibid. s. 221.
67 Ibid. s. 212 a contrario.
68 Ibid. ss. 2, 27-31.
69 Ibid. ss. 358-358.5.
70 Ibid. ss. 359, 429.22.
71 Ibid. s. 369.
F. MAKELA WORKPLACE SEXUAL HARASSMENT COMPENSATION
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principles of administrative law.72 The CLP also has limited powers to review its own
decisions.73
39
B. Foucault and the Medicalization of Dignity
Subsequent to Bliveau-St-Jacques, commentators expressed concern that the
consequence would be the increased medicalization of sexual harassment victims.74
The process described above illustrates the extent of this significant problem. One
explanation is that increased medicalization is the regrettable result of a particular
interpretation of a specific piece of legislation. Such a descriptive claim, however,
does little to explain the phenomenon. A more satisfying explanation would situate
the trend towards medicalization within a historical context.
Foucault argues that one of the unique aspects of modern society is the way in
which institutions such as schools, hospitals, and prisons constitute their subjects.75
Through the process of observation, description, and classification, individuals
become cases that can be understood and therefore administered.76 Thus, in contrast
with the medieval subjects of a sovereign, members of modern societies are the
objects of administration. The power of the state is not exercised by exceptional acts
punishing the disobedient, but rather through the everyday acts of disciplining the
obedient.
description of the case:
Compare the CSST procedure outlined in the previous section to Foucaults
Le cas, ce nest plus, comme dans la casuistique ou la jurisprudence, un
ensemble de circonstances qualifiant un acte et pouvant modifier lapplication
dune rgle, cest lindividu tel quon peut le dcrire, le jauger, le mesurer, le
comparer dautres et cela dans son individualit mme ; et cest aussi
lindividu quon a dresser ou redresser, quon a classer, normaliser,
exclure, etc.77
All of the characteristics that Foucault points out as characterizing the case are found
in the CSST procedure. The victim must first be described (through the doctors
diagnoses), then these descriptions are compared (at the Bureau dvaluation
mdicale), and measured according to the standards set out by the regulations (by the
CSST). Justice Gonthier, in his summary of the facts, describes the outcome of Ms.
Bliveau-St-Jacques evaluation as follows:
72 See ibid. s. 429.59 and arts. 33, 834-46 C.C.P. See also R.A. Macdonald, Absence of
Jurisdiction: A Perspective (1983) 43 R. du B. 307 at 349-51 for a particularly poignant example of
the concrete effects that jurisdictional challenges have on CSST claimants.
73 Ss. 429.56-429.57. See Commission de la sant et de la scurit du travail c. Fontaine, [2005]
R.J.Q. 2203, 2005 QCCA 775 for a discussion of the CLPs powers to review its own decisions.
74 See e.g. Lippel & Demers, supra note 22 at 2.
75 See Michel Foucault, Surveiller et punir (Paris: Gallimard, 1975).
76 See ibid. at 186-96, especially 193-94.
77 Ibid. at 193.
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She … received compensation for bodily injury … established on the basis of a
permanent impairment percentage of 18 percent. The CSST found that she had
sustained an anatomicophysiological deficit of 15 percent and suffering and
loss of enjoyment of life resulting from that deficit of 3 percent.78
What is described, measured, compared, and ultimately judged by the CSST is not an
instance of sexual harassment. In fact, the CSST has no jurisdiction to even
pronounce on the existence of such a state of affairs, since it only asks if there is a
link between the workplace and the accident.79 Instead, the procedure centres on the
true site of regulation: the victim.
The effects of a procedure that regulates victims rather than judging states of
affairs are manifold. First, there is the impact on the actual individuals forced to
navigate the process. Having suffered affronts to their human dignity, they must
submit to a series of tests, examinations, diagnoses, and judicial procedures. The
ability to name what happened to them (harassment, violation, etc.) is appropriated by
the medico-legal technocracy. As if any evidence were needed to support the
proposition that this process is detrimental to those who undergo it, we need look no
further than the circumstances surrounding the Bliveau-St-Jacques decision.
Subsequent to the CSST ruling and the initial civil proceedings, Ms. Bliveau-St-
Jacques found herself again in front of the CSST. This time, she sought compensation
for a relapse in her symptoms caused by the administrative and judicial process
itself.80
One might argue, nevertheless, that what Foucault describes is the unfortunate
but necessary result of the historical compromise81 that characterizes the CSST, or
of no-fault regimes generally. It could also be maintained that even administrative
regimes that allow for fault-based liability have the ironic tendency to reproduce the
very byzantine
through
dejudicialization.82 But there is a significant difference between these cases and the
medicalization of sexual harassment victims. In the latter instance, it is a specific
subset of the population (i.e., mostly women)83 who are (re)victimized by the
disciplining discourse. It is to this aspect of the problem that we now turn.
they were meant
rule-structures
that
to
replace
78 Bliveau-St-Jacques, supra note 2 at 392.
79 See Drapeau, supra note 21 at 194-95.
80 Bliveau c. C.S.N., [1993] C.A.L.P. 1571.
81 See Part I, above, for more on this topic.
82 See e.g. Pierre Bourdieu, The Force of Law: Towards a Sociology of the Juridical Field, trans.
by Richard Terdimen (1987) 38 Hastings L.J. 805 at 836-37 (on the judicialization of labour
arbitration boards). See also Charles Dickens, Bleak House (New York: E.P. Dutton & Co., 1948) for a
fictional account of the complexity of the English Courts of Equity.
83 See generally Lippel & Demers, supra note 22.
F. MAKELA WORKPLACE SEXUAL HARASSMENT COMPENSATION
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C. The Hysterical Turn
the
they may very well underlie
Women live their emotional life bodily. Destined by their instincts and bound by
their hormones, they do not fit within the Cartesian model of the self that divides
body from soul and emotion from reason. Such thinking has a long history both in the
domains of psychology and of law. Early treatment of hysteria in women often
consisted in the medical application of vibrators,84 since mental illness in women was
thought to be directly linked to their embodied sexual nature.85 In the common law,
the gradual judicial recognition of psychological damages started with cases of
miscarriage, euphemistically described as nervous shock.86
However far we may believe we have come from these absurd and antiquated
views,
jurisprudential development of
indemnification for workplace harassment. As I noted above,87 the notion that
psychological injury could be compensable under workplace accident legislation was
accepted at the same time that the first such act was passed in Quebec, almost a
century ago. Yet it was not until relatively recently, after women began to occupy a
significant portion of the paid workforce and the problem of harassment had been
named,88 that such claims began to be filed atand recognized bythe CSST.
I am not, of course, suggesting that the commissioners and judges who developed
the jurisprudence consciously accepted the idea that womens bodies and emotional
life are necessarily linked. Evidently, advances in medical science have made the
civilian category of moral damages increasingly problematic, as the physical basis for
emotional life became better understood. Nevertheless, the idea is subtly entrenched
in our societys conceptions of the ways in which women and men experience
affronts to their integrity. This is particularly striking when contrasted with the
residual category of moral damages unrecognized by the CSST, and therefore
insulated from the AIAODs displacement of civil remedies: damage to reputation.
IV. Private Injuries and Public Harms
The distinction between the male public realm of business and politics and the
female private realm of the home and family is not a neutral natural phenomenon.
84 See generally Rachel P. Maines, The Technology of Orgasm: “Hysteria,” the Vibrator, and
Womens Sexual Satisfaction (Baltimore: Johns Hopkins University Press, 1999).
85 See e.g. W.H.R. Rivers, Instinct and the Unconscious: A Contribution to a Biological Theory of
the Psycho-neuroses (Cambridge, UK: Cambridge University Press, 1922); C. Jung, Psychological
Types, trans. by H.G. Baynes & R.F.C. Hull (Princeton: Princeton University Press, 1971).
86 See e.g. Martha Chamallas & Linda K. Kerber, Women, Mothers and the Law of Fright: A
History (1990) 88 Mich. L. Rev. 814.
87 See Parts II-III, above.
88 See e.g. Lippel & Demers, supra note 22 at 10-12. See also MacKinnon, Harassment, supra note 1.
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Many feminists have pointed out that the distinction is partially constituted and
reinforced by the operation of the law, which is both gendered and gendering.89
If we focus on the phenomenon of legal treatment of sexual harassment in the
workplace, problematizing the public/private split does not immediately yield an
explanation. On the traditional view of the distinction, virtually all workplace
harassment is public by definition, since the workplace is paradigmatically public.90
If, however, we work from the insight that an important feature of the legal response
to harassment is the regulation of victims, then the private or public nature of the
harm caused by harassment provides the basis for a trenchant critique.
A. The Defamation Double Standard
Unlike the common law of torts, there is no specific action for defamation under
the civil law.91 Defamation is covered by the general regime of civil liability,92 though
the specific right to the respect of ones reputation that grounds an action in civil
liability is found both in the Civil Code of Quebec93 and in the Quebec Charter.94 As
with any civil liability claim, physical, material, and moral damages can be awarded
in an action based on defamation.95 Arguably, an extra measure of quasi-
compensatory damages for non-pecuniary loss makes awards for damage to
89 See generally Regina Graycar & Jenny Morgan, The Hidden Gender of Law (Sydney: Federation
Press, 2002) c. 2. Carole Pateman has argued that the public/private dichotomy is the central question
of feminist theorizing: see Carole Pateman, The Disorder of Women (Cambridge, U.K.: Polity Press,
1989) c. 6. See also Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal
Reform (1983) 96 Harv. L. Rev. 1497 (claiming that the persistence of the dichotomy has limited the
effectiveness of reform efforts geared towards achieving gender equality as well as limited the range
of possible reforms). But see Tracy E. Higgins, Reviving the Public/Private Distinction in Feminist
Theorizing (2000) 75 Chicago-Kent L. Rev. 847 (arguing that the threat to equality posed by the
public/private distinction has been overstated by feminists but that it is an important theoretical tool,
especially when used to ground a more overarching critique of state power).
90 Such an analysis may nevertheless be useful if we take into account the gendered nature of work
highlighting, for example, ways in which harassment may be more prevalent in private workplaces
such as childcare and other domestic work.
91 See Prudhomme v. Prudhomme, [2002] 4 S.C.R. 663, 221 D.L.R. (4th) 115, 2002 SCC 85 for a
discussion of the difference between the common law and the civil law on defamation.
92 See Devoir inc. c. Centre de psychologie prventive et de dveloppement humain G.S.M. inc.,
[1999] R.R.A. 17 (Q.C.A.).
93 Arts. 3 and 35 C.C.Q. See also art. 2929 C.C.Q. This provision, specifying when prescription
period begins to run, is the only place in the Civil Code of Quebec where the term defamation is
used. The French version refers to atteinte la rputation.
94 Supra note 3, s. 4 (protecting dignity, honour, and reputation).
95 Art. 1457 C.C.Q.
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reputation particularly high.96 Furthermore, punitive damages under the second
paragraph of section 49 of the Quebec Charter are also available.
Given the broad scope accorded to the exclusion of civil remedies in Bliveau-St-
Jacques and the expansive reading of section 438 of the AIOAD in Genest,97 one
would expect that damage to reputation caused by workplace incidents would be
excluded in the same way. Indeed, defendants in defamation cases began invoking
Genest as the grounds for a motion to dismiss raised by declinatory exception shortly
after it was decided.98 These were unsuccessful, but the question of whether
defamation can constitute a workplace accident was not squarely answered, since the
motions were denied on other grounds.99
When the issue was finally put directly to the Court of Appeal, the Genest
analysis was rejected. Thus, in deciding Parent c. Rayle,100 the Court of Appeal
introduced a double standard shielding defamation from the exclusionary regime. The
plaintiff, a management member of a school board, was the subject of a scathing
article in the teachers union newsletter, written by the unions president. Claiming
damage to her reputation, she filed an action in the Superior Court. When it was
revealed in pre-trial discovery that the plaintiff had been diagnosed with depressive
anxiety as a result of the alleged defamation, the defendant immediately filed a
motion to dismiss. The court, it was argued, must decline jurisdiction and refer the
case to the CSST, which has exclusive jurisdiction to determine whether the incident
constitutes a workplace injury. The argument was not accepted by the Superior Court,
and the defendant appealed.
In a surprisingly short judgment, the Court of Appeal upheld the Superior Courts
decision, finding that the intention of the legislator could not have been to include
defamation
is
distinguished from Genest on the grounds that in that case, the parties had agreed that
the incident in question constituted a workplace injury that would have been
the workplace accident compensation scheme. The case
in
96 See Lafferty, Harwood & Partners c. Parizeau, [2003] R.J.Q. 2758, R.R.A. 1145 (C.A.)
[Parizeau cited to R.J.Q.], leave to appeal to S.C.C. granted, [2004] 1 S.C.R., but discontinued (8
February 2005) S.C.C. Bulletin of Proceedings.
97 Supra note 47.
98 See Dufour c. Syndicat des employes et employs du centre daccueil Pierre-Joseph Triest
(C.S.N.), [1999] R.J.Q. 2674, R.J.D.T. 1559 (C.S.) [Dufour cited to R.J.Q.]; Protestant School Board
of Greater Montreal c. Williams, [2002] R.R.A. 1060, D.T.E. 2002T-1010 (Q.C.A.) [Williams cited to
R.R.A.]; Kupelian c. Nortel Networks Corp., [2002] AZ-50118045 (Azimut), D.T.E. 2002T-377 (C.S.)
[Kupelian cited to Azimut].
99 See Williams, ibid. at paras. 57-58 (declinatory exception raised on valid grounds but prescription
had run out and it would be inequitable to leave the plaintiff without a remedy). See also Kupelian,
ibid. at paras. 8-11, 16-19 (declinatory exception raised on valid grounds for all heads of recovery
except defamation, which was not factually linked). But see Dufour, ibid. (the Court found there was
no workplace injury on the facts).
100 [2003] R.J.Q. 6, R.J.D.T. 1 (C.A.) [Parent cited to R.J.Q.].
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compensable had it been filed at the CSST. Here, the question of whether it was a
workplace injury was a question at trial.
critiques of Bliveau-St-Jacques:101
The core of the decision is based on the same reasoning that underlies one of the
… [L]interprtation propose nous conduirait des situations pour le moins
draisonnables ou inquitables. En effet, si un travailleur est diffam par un
collgue de travail et quil en rsulte anxit ou dtresse requrant un suivi
mdical, son seul recours sera de sadresser la CSST, car il en dcoulerait une
lsion professionnelle … Qui plus est, si la diffamation ne cre pas chez lui une
atteinte permanente, il naura droit aucun dommage moral et encore moins
des dommages punitifs. Par contre, si ce travailleur continue de bien se porter,
physiquement et psychologiquement, il pourra rclamer non seulement des
dommages moraux pour atteinte sa rputation et mme possiblement des
dommages punitifs si latteinte tait intentionnelle … En somme, la diffamation
qui dtruit lindividu pourrait valoir moins que celle qui porte uniquement
ombrage sa rputation.102
The court went on to say that defamation is not necessarily excluded from the
AIAOD; this is up to the CSST to decide. Relying on Kupelian,103 it pronounced that
the courts of general jurisdiction enjoy concurrent jurisdiction with the CSST over
defamation.104
B. Dignity for Some
The consequences of the decision in Parent have not yet been felt and it is
possible that it may have a beneficial impact. The apparent narrowing of Genest
could be the source of arguments for future victims of workplace sexual harassment
who, for whatever reason, prefer judicial recognition of the harm that was done to
them over administrative compensation for their inability to work.
More likely, however, given the specific reliance on Kupelian, is that defamation
will continue to constitute a narrow exception to the exclusion of civil remedies under
the AIAOD. This would be unsurprising, given the analysis of the development of
CSST recognition of psychological injury as related to the nature of women.
Though the moral damages that one can claim for harassment (when not excluded
by the AIAOD) and defamation are both based on reparation for harm to dignity,105 the
notion of dignity at play is radically different. The first kind of dignity is solipsistic
and individualized. A woman who has had her dignity violated, in the eyes of the law,
has been harmed in her self-regard. Since affront to dignity is a private experience
lived inside the head of the victim, it is also amenable to the kind of medicalization
101 For further discussion of the critique of Bliveau-St-Jacques, see 10-11, above.
102 Parent, supra note 100 at para. 24 [footnotes omitted].
103 Supra note 98.
104 Parent, supra note 100 at para. 29.
105 See e.g. Quebec Charter, supra note 3, s. 4.
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described in previous sections. The second kind of dignity is externalized in the
community. A man who had his reputation violated, in the eyes of the law, has been
harmed in the regard of others. Since affront to reputation is a public experience lived
in minds of others, it is not amenable to medicalization.
I have sharpened the point somewhat by describing the bearers of dignity and
reputation rights as being women and men respectively. Of course, both genders have
formal equal protection of both sets of rights (and in fact, the plaintiffs in Parent and
Nortel were both women). Nevertheless, there are at least two serious critiques of the
decision based on feminist grounds.
First, whether men and women have formal equal rights is somewhat beside the
point. The legal system only decides the cases before it, and the field of possible
cases is determined by the situations in which people find themselves before
litigation. As a matter of empirical fact, we still live in a society where women are
sexually harassed much more often than men, and where men are arguably more
likely to have a professional reputation to protect. The former are medicalized in the
administrative regime and denied civil remedies, whereas the latter have access to
substantial106 compensatory and punitive damages.
A second, related problem with the distinction is its operation on the symbolic
level. The law is an important constitutor of social norms and thus its
pronouncements are performative in ways that affect more than just the parties at bar.
Thus, not only do the victims of sexual harassment find themselves with an
attenuated recourse, but all women are harmed by the law effectively saying: If you
have been harassed you must be sick, but if you have been defamed you have been
harmed.
Conclusion
Civil liability is an imperfect system. Fraught with injustices and inconsistencies,
it attempts to reduce varied forms of social conflict and individual suffering to a small
set of comparable features that can be ultimately translated into monetary terms.
Much is inevitably lost in the process. Workplace injury insurance schemes are also
imperfect. As in the case of civil liability, compensation is often insufficient, and
despite the idealthe process of administration can be as complex and dehumanizing
as the fault-based liability structures that were replaced.
In Quebec, women who are victims of sexual harassment in the workplace are
subjected to the worst aspects of both systems. Unfortunately, this is not a reflection
106 See e.g. Parizeau, supra note 96 where the Court of Appeal increased the damages awarded at
the Superior Court to a total of $100,000 per plaintiff. See also Rayle c. Parent, [2002] D.T.E. 2002T-
541, AZ-50127086 (Azimut) (C.S.) in which the Superior Court decided the merits subsequent to the
Court of Appeal determining that it had jurisdiction to do so. See Parent, supra note 100 where the
court awarded $30,000 in moral damages and $20,000 in punitive (exemplary) damages.
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of an imperfect legislative scheme that could be corrected with careful drafting or
creative interpretation. Instead, as I have attempted to illustrate, it is the reflection of a
society that has yet to eliminate the underlying prejudices and presuppositions that
accompany the systemic devaluation of women and their experiences.
