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Workers’ compensation – Defamation – Employee indemnified under Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001 (AIAOD), and victim of defamation in workplace – Whether civil immunity provided for in s. 442 AIAOD extends to defamation action.

On May 14, 2004, Ms. Dagenais, an employee of the Centre de santé et des services sociaux de LaSalle et du Vieux Lachine, Centre d’accueil de LaSalle, was assaulted and verbally abused by one of the six Applicants, who were her co-workers. She complained to her employer, and according to the facts as found, the six Applicants then waged a [translation] “campaign of mudslinging, intimidation, denigration, shunning and verbal abuse” against her. The Commission de la santé et de la sécurité du travail concluded that Ms. Dagenais had sustained an employment injury as a result of the May 14, 2004 attack and agreed to pay her an income replacement indemnity, initially from May to September 2004 and subsequently, following an administrative review proceeding, from February 2005 onward. Even though Ms. Dagenais had not returned to that workplace since May 17, 2004, the hostile attitude of her co-workers continued. In December 2005, Ms. Dagenais instituted an action in damages against her employer and her co-workers. She alleged, inter alia, unlawful and intentional violations of her dignity, her physical and psychological integrity, her honour and her reputation, and reproached the employer for having failed to act to put a stop to those violations. She claimed over $285,000 in damages, including $75,000 for defamation and $50,000 in exemplary damages.

The Superior Court judge held that, in light of Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, the employer could invoke the immunity from civil suits provided for in s. 438 AIAOD, because that immunity extends to damages for defamation deriving from the factual context that gave rise to the employment injury, regardless of whether indemnification was received in respect of that injury. Regarding the portion of the action concerning the co-workers, the judge held that it too was barred pursuant to the immunity provided for in s. 442 AIAOD, because the co-workers’ acts had been committed [translation] “in the course of work” and because, in accordance with Béliveau St-Jacques, the defamation derived from the same events as those that had caused the employment injury. The Court of Appeal upheld the Superior Court’s decision as regards the action against the employer. However, it reversed the decision as regards the action against the co-workers, applying Rayle v. Parent, [2003] R.J.Q. 6, and Gabba v. Rémillard, [2004] Q.J. No. 11685 (QL). The Court of Appeal held that, although defamation can be the cause of an employment injury, it will never, whether concomitant with an industrial accident or not, be by reason of an employment injury within the meaning of s. 442 AIAOD. To apply the immunity from civil suits provided for in s. 442 would lead to an absurd outcome that would be contrary to the legislature’s objective.