Nelligan O'Brien Payne gratefully acknowledges the contribution of Stéphane Serafin, Student-at-Law to this blog post.
Unlike Ontario, which follows the British common law tradition, the laws of Quebec draw heavily on French civil law. While these differences are perhaps not as apparent in the employment law context, the average person used to working in Eastern Ontario or elsewhere in Canada will probably still find a few surprises.
The following is a list of five things a prospective employee should know before “going to work” in Quebec.
1. Civil Code applies
In Quebec, employment contracts are governed by contract law principles found in the Civil Code of Quebec (the “CCQ”).
The CCQ contains provisions dealing with both the general principles applicable to all contracts, as well as particular rules applicable only to employment contracts. In fact, article 2085 CCQ defines employment contracts as those by which a person undertakes for a limited period to do work for remuneration, according to the instructions and under the control of another person.
This definition is similar to those found in Ontario and elsewhere in Canada. However, these jurisdictions follow common law, which means that while certain laws in those jurisdictions may define the employment relationship for their own purposes, the general definition is primarily a result of judicial decisions. As such, some differences may exist between who is considered an employee in Quebec, and who is considered an employee elsewhere in Canada.
2. Reasonable notice
In Quebec, an employee is entitled to a reasonable notice period, or pay in lieu of notice, anytime he or she is dismissed without cause. On this point, Quebec is largely similar to Ontario and elsewhere in Canada.
However, unlike the common law provinces, Quebec has codified the reasonable notice requirement in article 2091 of the CCQ. In Ontario, the reasonable notice requirement exists because of judge-made common law.
3. Contracting out of damages resulting from unreasonable notice
Article 2092 of the CCQ provides that “[t]he employee may not renounce his right to obtain an indemnity for any injury he suffers where insufficient notice of termination is given or where the manner of resiliation is abusive”. In other words, employees in Quebec are entitled to payment in lieu of notice that is equal to the full reasonable notice period, regardless of the terms of the employment contract.
In Ontario, the Employment Standards Act provides a separate statutory notice period. This notice period is lower than the full reasonable notice period an employee might be entitled to under judge-made common law. Broadly speaking, the common law notice period only applies if an employment contract does not exclude it. However, an employment contract cannot provide for a lesser notice period than the minimum set by the Employment Standards Act, assuming that the Act applies to the employee in question.
This issue does not arise in Quebec, where all employees are entitled to the full reasonable notice period as set out in the CCQ.
4. The right to reinstatement
The Act Respecting Labour Standards provides a mechanism by which an eligible employee dismissed without good and sufficient cause can apply for reinstatement. Employees who are not covered by the Labour Standards Act – typically employees in management positions – are instead limited to claiming damages for unjust dismissal under the CCQ.
The Employment Standards Act in Ontario does not provide a comparable remedy. The only way an employee can typically obtain reinstatement is to pursue a human rights complaint under the Human Rights Code. Consequently, employees dismissed without just cause are limited to claiming damages equivalent to the reasonable notice period.
5. Recourse in the event of psychological harassment in the workplace
An Act Respecting Labour Standards also provides a general mechanism through which Quebec employees can seek redress for psychological harassment. Pursuant to section 81.18 of the Act psychological harassment includes “any vexatious behaviour in the form of repeated and hostile or unwanted conduct, verbal comments, actions or gestures that affects an employee's dignity or psychological or physical integrity and that results in a harmful work environment for the employee”. If sufficiently serious, even one incident may be considered vexatious.
The provisions in An Act Respecting Labour Standards dealing with psychological harassment are relatively new and have received much attention in Quebec. Their general scope contrasts with the approach Ontario has taken towards workplace harassment in its Human Rights Code, which provides protection to employees against harassment on the basis of specific factors such as race, sex and creed.
Quebec employment law still relies on similar concepts as employment legislation in Ontario. The CCQ replaces the common law in establishing employee rights to notice and damages, and An Act Respecting Labour Standards provides for employee rights at the workplace and to reinstatement in the event of termination. Though Quebec and Ontario employment law often rely on similar general principles, how these principles are applied set them apart.