Important

This is not legal advice! What you are getting here is just general legal information. It is not a substitute for advice from an actual lawyer about your specific situation. If you need legal advice, we urge you to find a lawyer who can help you. See How to Find and Work With a Lawyer.

If you’re reading this, you’re probably considering filing a claim with the Occupational Health and Safety division of the CNESST (Labour Standards, Pay Equity and Workplace Health and Safety Board) because you want to be compensated for harms you suffered due to harassment. This guide explains how to file a CNESST claim related to sexual harassment, and the pros and cons of this process, so you can decide whether it’s an avenue you want to pursue.

The Quebec Workmen’s Compensation Commission was created in 1928. Today, the CNESST is an agency of the Travail, de l’Emploi et de la Solidarité sociale ministry. It gives benefits and supports to people who’ve been injured at work. These can include replacement of lost wages, health care (including rehabilitation, counselling, and medications), and, in certain situations, retraining.

Facts about the CNESST Occupational Health and Safety division

  • The CNESST functions like an insurance provider. Employers pay premiums to CNESST for the people who work for them. As a result, those people are entitled to benefits if they suffer a workplace injury.
  • About 3.8 million Quebec workers are covered by the CNESST. That represents 92% of the workforce.
  • Roughly 95,000 workers receive wage-replacement benefits for “occupational injuries” each year.
  • However, most successful claims are for physical injuries. When it comes to psychological injuries resulting from trauma or harassment, the vast majority of claims are rejected because it’s hard to prove they are occupational injuries.
  • Claims for psychological injuries total under 5% of the CNESST compensation budget.
  • If your claim is rejected, you can appeal, but the process is complicated and takes a long time. About half of appeals about psychological injuries are successful.
  • Sources: CNESST Statistics annuelle 2020; “Workers’ Compensation for Work-Related Mental Health Problems: An Overview of Quebec Law,” Katherine Lippel, in Psychosocial Risks in Labour and Social Security Law; Compensation Guide for Quebec Workers

If you’ve been harmed by sexual harassment at work, you might think the CNESST will help you. For instance:

  • Maybe after you were harassed, you took time off work and so lost income.
  • Maybe the harassment damaged your mental health, and you ended up needing to spend money on medication for anxiety or depression.
  • Maybe the harassment had such an effect on you that you had to leave a male-dominated industry and ended up needing to retrain for a new type of work in a different field. 

Those are the kinds of expenses—replacement of lost wages, medication costs, retraining costs—that the CNESST normally does reimburse.

And so it might sound like a good idea to file a claim with the CNESST.

But we need to warn you: The CNESST is very unlikely to assist you. 

The CNESST gives you benefits and supports if you have suffered a physical injury at work (rare in cases of sexual harassment) or psychological injury (less rare in sexual harassment cases, but hard to prove). It will only help you if the harm you’ve suffered fits into one of those two categories.

Historically, the CNESST has mostly handled claims related to physical injuries suffered by workers in male-dominated industries like construction and manufacturing, and in uniform occupations like policing and firefighting. If you slip at work and break your ankle, or are struck by a falling object, or are injured in a fire or explosion: that is the kind of situation the CNESST was designed for and has a lot of experience handling.

The CNESST has less experience with mental health harms.

Realistically, it’s likely that if you make a claim as a result of sexual harassment, you’ll be turned down. If you want to pursue the claim after being denied, you’ll need to be prepared to go through an appeal process. Appealing can take a long time, and of the few appeals that are heard, many are denied.

Pros and cons of going to the CNESST

Pros

  • Making a CNESST claim isn’t as complicated as in other forums, and it’s free. Also, you won’t have to pay for your employer’s legal costs if they appeal your claim or if your appeal isn’t successful at the Tribunal administratif du travail.
  • If the CNESST accepts your claim, the process to get money could be faster than in other forums.
  • CNESST benefits can be generous: 90% of your salary.
  • You submit your claim directly to CNESST. No need to wait for your employer to investigate.
  • Representing yourself is possible when first making a claim. But if your claim is denied, appealing is more complicated. There may be some legal resources to help if you still want to represent yourself.

Cons

  • You can’t apply to the CNESST secretly. Your employer will know about your claim.
  • Your employer will have the opportunity to dispute your claim and it’s very likely they will do this.
  • If the CNESST rejects your claim and you appeal, the appeal process may go on for years.
  • To make a claim, you will need a medical professional to say that you’ve suffered an injury. If you don’t have easy access to a medical professional who will do this, making a claim will be harder.

Will the CNESST accept my application?

  • To be eligible for benefits and services under the CNESST process, you must be a “worker” employed in a business or industry that is covered by the Workplace Safety and Insurance Act. About 92% of workers in Quebec are covered by the CNESST. People who are excluded include domestics, caregivers, and professional athletes. Your injury must be “a disease contracted out of or in the course of work and characteristic of that work or directly related to the risks peculiar to that work.”
  • If you aren’t sure whether you’re covered by the CNESST, you can call 1-844-838-0808 or seek advice from your union or a lawyer.
  • The CNESST will only accept your claim if the injury was “caused by or in the course of your work.” Meaning harassment only counts if it takes place at work, during your work hours (or within a reasonable period before or after work), and while you are performing your work duties. If you live on your employer’s property, harassment that takes place outside work hours may still be covered. Similarly, if your work requires you to go to different places, you may be covered while travelling and at the different locations.
  • The CNESST won’t cover every kind of mental stress that arises at work. If you develop a mental health condition caused by your employer making changes to your shifts or other working conditions, for example, or firing you, or due to interpersonal conflicts that don’t involve harassment, you aren’t eligible to file a claim.
  • As a general principle, the law says that you can’t have the same issue decided twice in two different places. If you start a case for the same problem in more than one forum, it’s possible that the decision-maker in one of them will wait until the case has been decided in the other forum or reject it altogether. People often try the CNESST first. However, it’s best to speak with a lawyer about your options, as the facts of your case may allow you to approach more than one forum.

Special situations

Contact the CNESST at 1-844-838-0808 to learn about the rules that apply if you are in one of these categories:

  • non-resident worker
  • undocumented or don’t have a work permit

Legal help

You may be able to get help from a lawyer for free. Here are some places that offer free or low-cost legal services:

  • Justice Pro Bono may be able to connect you with a lawyer who will work for free. You must be unable to pay a lawyer’s fee and not be eligible for legal aid. Other criteria are outlined on the website. There is a $20 fee to apply.
  • Juripop provides accompaniment in negotiations and conciliation, drafting and revision of documents, as well as free support and legal advice for psychological or sexual violence experienced at work.
  • L’Aparté provides accompaniment in negotiations and conciliation, drafting and revision of documents and free support and legal advice for psychological or sexual violence experienced in the cultural sector.
  • Le Groupe d’aide et d’information sur le harcèlement sexuel au travail (GAIHST) offers advice and information to people who have been harassed in the workplace. It may be able to provide representation.
  • Legal aid provides free or low-cost services to low-income individuals. In 2022, the maximum gross annual income for a single person to be eligible was just under $26,000.
  • JusticeNet is a not-for-profit service for those whose income is too high to qualify for legal aid but too low to afford regular legal fees. To qualify you must have a family net income under $90,000 and be experiencing financial difficulties. Participating lawyers’ reduced rates vary depending on your family size and income.

For advice on hiring a lawyer, see How to find and work with a lawyer.

Social and health supports

  • Quebec 211: This community and social services helpline is available weekdays 8 a.m. to 7 p.m. and weekends 8 a.m. to 3:30 p.m. by phone (211 or toll-free 1-877-211-9933) or online. It can put you in touch with services, supports, programs, and more.

Applying

First, you must decide if filing a claim with the CNESST is the right choice for you. Because there is a high turndown rate for claims involving sexual harassment as an occupational injury there might be other forums—for example, the Commission des droits de la personne et des droits de la jeunesse or civil court—where you could have a better chance of success.

If you are off work, your salary for the first 14 days after the injury occurred are paid to you by your employer. On the 15th day, you are possibly eligible for income-replacement benefits.

You must first see a doctor to get a medical certificate describing their diagnosis and their estimate of how long you will need to be off work.

Include this certificate with your completed Worker’s Claim. You must also give your employer a copy of the form.

If you will be away from work for more than 14 days, your doctor must complete a report that indicates:

  • the date of your injury
  • the main diagnosis and any relevant additional information
  • the time they believe you need to recover
  • what treatment, like psychotherapy, they are prescribing
  • whether they believe your injury may be permanent

You can submit your claim form and medical certificate online or by mail to:

CNESST
C.P. 2026, Succ. Terminus
Québec, QC G1K 0H9

Claims must be filed within six months. This period starts when the injury is diagnosed or you become of aware of the connection between the injury and your work.

Once you’ve filed a claim, a compensation officer will assess it and decide whether it is admissible.

Important

The CNESST requires that you authorize anyone who’s providing your health care or who you’re consulting about a workplace injury to release the information they discover to the CNESST for the purpose of processing your claim.

An independent health examination

The CNESST may ask you to undergo an independent health examination if it thinks more medical information is necessary to make a decision in your case.

The independent health professional may not agree with your health professional’s diagnosis. If so, the CNESST may use that opinion as a reason to deny you benefits.

If your claim is approved

If your claim has been successful, the benefits you can receive include:

  • health care benefits like therapy and prescription drugs
  • money to replace income you’ve lost due to your injury
  • retraining, if necessary

Relapse, recurrence, or aggravation

A relapse is the return of symptoms that characterized your employment injury when it was in the process of healing. A recurrence is the reappearance of an employment injury after a fairly lengthy period of healing. Aggravation is an increase in the severity of the injury.

If you have filed a claim for this injury in the past and your symptoms return more intensely and you think you are suffering a relapse, recurrence, or aggravation, you must file a new claim with the CNESST.

Returning to work

The CNESST’s focus is on trying to get you back into the workplace. Your health professional is key to this step. The CNESST will also contact your employer to develop a suitable return-to-work plan.

A rehabilitation counsellor may be assigned to your case. In the case of an employment injury resulting from sexual harassment in the workplace, the rehabilitation plan targets both social and vocational recovery. Specifically, the objectives of the rehabilitation plan may be to:

  • help you overcome the personal and social consequences of your employment injury
  • help you adjust to your new situation
  • help you retain your autonomy in carrying out activities that you did before the injury
  • facilitate your reinstatement in your job or an equivalent job 
  • enable you to access suitable employment with the same employer or elsewhere
Tip

The thought of returning to work after the sexual harassment you experienced there can be stressful and overwhelming, as you’re going back to the place where you were harassed. Consider connecting with your support network, like friends, trusted loved ones, a therapist or support group. See Build a support network for more information.

The right to return to work

When you are ready to return to work, you have the right to resume your old job. This rule applies for one year if your workplace has fewer than 20 employees and two years for workplaces with more than 20 employees.

If your employer claims that your position no longer exists, it is their responsibility to find you an equivalent position at the same rate of pay that you received previously.

If you are permanently harmed by the sexual harassment in the workplace and so can’t do your old job, your employer must attempt to adapt your position. If that’s not possible, they must offer you the first suitable employment that comes available.

If you are on contract you have the right to return to work until the end of the contract.

Temporary assignment

If you are unable to return to your regular job in the short term, your employer may offer you a “temporary assignment.” The purpose of this step is to gradually prepare you for a full return to work while reducing the risk of relapse.

The temporary assignment may be the same job you were doing at the time of the employment injury, but with some changes, such as:

  • a reduction in your workload
  • adjustments to the pace or intensity of the work

If your employer wants to offer you a temporary assignment, they must provide your attending physician with a complete description of the position that they plan to propose and details like the duration of the assignment, the workload, and the specific tasks involved. Your attending physician must then give their consent to the temporary assignment proposed by your employer.

You or your employer must inform the CNESST of this temporary assignment. The temporary assignment ends when you are fully able to do your regular job or a suitable job.

Throughout a temporary assignment, you receive the salary and benefits of the job you held at the time of the sexual harassment.

Accommodation

Your employer must demonstrate that they are making a “real and reasonable effort” to reinstate you.

For example, they might:

  • make a change in how your work is organized
  • remove a non-essential task from your job
  • change your shift time

Your employer has to demonstrate that they’re making a genuine effort to accommodate you.

Accommodation can also consist of your employer finding you suitable employment if you are unable to return to your old position.

The CNESST will make the decision about when you should return to work and what you will do there.

If your claim is turned down

It’s very likely that your claim for an occupational disease due to sexual harassment will be denied. A high number of these claims are turned down at an early stage in the process, often after only brief consideration. Appealing is lengthy and often unsuccessful.

You may still decide to appeal, and if you do, you can apply for a reconsideration of the decision. 

To request a reconsideration you must show that there’s a new essential fact that was not known at the time of the decision. You have 90 days from the time you learn of this new fact to request that the CNESST–OHS division reconsider the decision.

Send your request for reconsideration to the CNESST.

Another option is filing an application for review with the Administrative Review Branch (ARB) within 30 days of when the original decision was made.

The ARB’s decision can be appealed to the Administrative Labour Tribunal (ALT). You must make the appeal within 45 days. To do this, you have to file an “originating pleading” by submitting the Formulaire de contestation. The tribunal has a French-language document on its website that outlines the appeal process.

You may be offered an opportunity to participate in conciliation.

Le service de conciliation au Tribunal administratif du travail, Tribunal administratif du travail

If conciliation is unsuccessful, your case will be sent to a hearing, which has a number of rules of evidence and procedure. There will be another chance to participate in conciliation.

If a hearing goes ahead, see the tribunal’s French-language video about how to prepare.

La préparation à une audience devant le Tribunal administratif du travail, Tribunal administratif du travail

You may have a lawyer represent you.

You should receive the tribunal’s decision within three months. This decision is final and without appeal.