Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction over claims by unionized professors and staff against Concordia University turns on whether alleged antisemitic harassment and discrimination are workplace “conditions of employment” governed exclusively by grievance arbitration under collective agreements.
• The court finds that clauses in the various collective agreements guaranteeing a harassment-free, non-discriminatory work environment capture the alleged conduct, sending all unionized employees’ claims against Concordia to grievance arbitration and ousting Superior Court jurisdiction.
• For non-unionized employees, the psychological injury and harassment allegations potentially fall within the exclusive regimes of the LATMP and the LNT, requiring first a determination by CNESST and/or the Tribunal administratif du travail before the Superior Court can proceed.
• Despite the workplace context, claims by L.S. and other employees against the Concordia Student Union (CSU) remain within the Superior Court’s jurisdiction because CSU is a third party to the collective agreements and outside the arbitrator’s personal jurisdiction.
• The court accepts that fragmentation of the dispute (different forums for different subgroups and respondents) is permissible, as class action procedure cannot override statutory and exclusive jurisdictional allocations.
• No damages are awarded at this stage; only costs are ordered, with Concordia recovering its costs against L.S. on its partially successful motion, and L.S. recovering costs against CSU on CSU’s unsuccessful verbal motion, but specific monetary amounts are not stated in the decision.

Facts of the case

The proposed class action arises from allegations of systemic antisemitism, harassment and intimidation on the campuses of Concordia University in Montréal. The representative plaintiffs, D.G., A.L. and L.S., filed an application for authorization to institute a class action on 16 November 2023 against Concordia University and the Concordia Student Union (CSU). The proposed class includes four subgroups: (a) all Jewish students currently enrolled at Concordia; (b) all Jewish students who attended Concordia in the past three years; (c) all Jewish members of the faculty and staff currently employed by Concordia; and (d) all Jewish former faculty and staff who were employed in the past three years. The plaintiffs allege that the university administration and CSU were negligent in preventing, investigating and responding to antisemitic incidents occurring on campus. They claim failures to investigate antisemitic incidents, to train administrators on harassment reporting, to provide guidance and supervision to faculty and staff to ensure a safe learning environment, to provide students with adequate resources and training on antisemitism and zero-tolerance policies, to document and discipline students and student organizations involved in antisemitic conduct, and to denounce or sanction antisemitic movements on campus. They also claim a failure to identify, counsel and support Jewish students facing harassment and intimidation, and to enforce internal policies, regulations and directives addressing hateful propaganda and hate speech. The application seeks, on a class-wide basis, $10,000,000 in compensatory damages and $5,000,000 in punitive damages, plus interest, for psychological and other harms said to have been suffered by the class as a result of those alleged omissions and institutional failures. For L.S., a Jewish professor at Concordia, the application specifically alleges significant psychological sequelae including recurring nightmares, flashbacks, fear of open spaces and crowds, fear of being on campus or identifying as Jewish, fear of expressing his religion, fear of attending and speaking in class, as well as loss of enjoyment of life, expenses for psychological treatment and loss of competitive advantage in academia.

Procedural posture and relief sought in this judgment

The case is still at the authorization stage of the class action. Before authorization is decided, Concordia University brings a formal motion in irrecevabilité (declinatory exception) under article 167 of the Code of Civil Procedure, claiming that the Superior Court lacks subject-matter jurisdiction over the claims of L.S. and all Jewish faculty and staff (current and former). Concordia argues that, for unionized employees, the dispute falls within the exclusive jurisdiction of grievance arbitrators under the applicable collective agreements and the Labour Code, and that for non-unionized employees, jurisdiction instead lies with the CNESST under the LATMP and the LNT. CSU, for its part, makes an oral (verbal) motion in irrecevabilité, seeking to ride on Concordia’s arguments and have the Superior Court also decline jurisdiction over the same employee-based claims against CSU, without filing its own written motion. The plaintiffs oppose both positions and maintain that the Superior Court retains its ordinary jurisdiction to hear the proposed class action, particularly as it concerns systemic institutional failures and human rights violations.

Key contractual and statutory framework

A large part of the judgment turns on the interaction between the proposed class action and several labour and employment regimes. For unionized employees, the court notes that Concordia and multiple employee groups (professors, management and administrative employees, research employees, library staff, professional employees, support staff, technical support staff, trades workers, part-time faculty and research/education workers) are bound by numerous collective agreements in force during the relevant periods. These agreements all contain clauses analogous to clauses 7.01 to 7.03 of the professors’ collective agreement, which guarantee: the application of natural justice in decision-making; a right to a work environment free from harassment, with an employer obligation to take reasonable steps to prevent it and to respond appropriately; and protection from discrimination based on characteristics such as race, national or ethnic origin, political or religious belief and other protected grounds, in connection with all key conditions of employment. Each collective agreement also contains a standard grievance and arbitration procedure that channels “any grievance” concerning interpretation or application of the agreement to arbitration under article 100 of the Labour Code. For non-unionized employees, the court considers the LATMP and the LNT, which establish exclusive state regimes for the handling of workplace “lesions professionnelles,” including psychological injuries resulting from accidents at work (sudden, unforeseen events arising out of or in the course of employment) or, where not characterized as such, psychological harassment complaints and consequential remedies through CNESST processes and the Tribunal administratif du travail.

The plaintiffs’ jurisdictional theory

The plaintiffs argue that their dispute is not fundamentally about employment relations but about Concordia’s institutional failure to provide a safe, non-discriminatory campus for all members of the university community, including students, faculty and staff. They contend that the alleged harm to L.S. flows from antisemitic harassment and intimidation perpetrated by students and third parties, not from employment measures or disciplinary decisions taken by Concordia as employer. In their view, the essence of the dispute lies beyond the scope of collective agreement enforcement and concerns broader duties of care and Charter-protected rights that only a court can fully address in the context of a class action, including systemic remedies and punitive damages. They maintain that the grievance procedure is structurally unsuited to grant the class-wide, punitive and institutional relief sought, and that the Superior Court’s residual jurisdiction cannot be displaced absent a clear legislative ouster, which they say does not exist here.

The court’s analysis of jurisdiction over Concordia University

The judge begins from the principle that the Superior Court’s competence to hear a class action is purely procedural and cannot override an exclusive subject-matter jurisdiction granted by legislation to another forum. He applies the analytical framework developed by the Supreme Court of Canada and the Québec Court of Appeal: first, examine the relevant statutes and collective agreement clauses; second, look at the “essential nature” of the dispute, considering the parties, the object and the remedies, and not the plaintiffs’ formal legal characterization. For unionized employees, the court finds that the allegations in paragraph 63 of the authorization application, as they relate to L.S. and other unionized staff, all concern discrimination, harassment and intimidation suffered on Concordia’s campus, which is their workplace. The harms alleged are psychological and other damages tied to the work environment and the employer’s response to that environment. Given that the collective agreements explicitly guarantee a harassment-free and non-discriminatory workplace and require the employer to take reasonable steps to prevent and address such conduct, the court holds that the claims fall squarely within the interpretation and application of the collective agreements’ harassment and discrimination clauses. The fact that the alleged harassment or discrimination may have been perpetrated by students, other employees covered by different agreements, or members of CSU does not change the analysis; what matters is that the alleged failure of Concordia is framed as a failure to provide the contractual working conditions guaranteed by the collective agreement. Those obligations implicitly incorporate human rights legislation such as the Québec Charter. Accordingly, for L.S. and all other unionized faculty and staff, the “essence” of the dispute with Concordia arises from and is governed by their collective agreements, and article 100 of the Labour Code gives grievance arbitrators exclusive jurisdiction. The Superior Court therefore declines jurisdiction ratione materiae over these claims. For non-unionized employees, the court analyzes whether the alleged psychological injuries and harassment would be covered by the LATMP’s concept of “lésion professionnelle” arising from an “accident du travail,” or if not, by the LNT’s specific regime for psychological harassment. The judge notes that jurisprudence and doctrine treat psychological injuries, including those resulting from traumatic events and harassment, as potentially compensable work injuries under the LATMP. The definition of “accident du travail” does not require that the event be extraordinary or exceptional, and the allegations here involve significant, possibly traumatic events occurring by reason of, or in the course of, the employees’ work. If the CNESST and Tribunal administratif du travail determine that the harms alleged constitute work injuries or fall within the statutory harassment provisions, those regimes would then provide the exclusive route for redress, excluding a civil action in the Superior Court against the employer. Because that determination must be made first by the specialized bodies, the judge finds it premature to finally decline jurisdiction over non-unionized employees’ claims against Concordia. Instead, he suspends that portion of the authorization application, allowing CNESST and/or the Tribunal administratif du travail to opine on their own jurisdiction. If they accept jurisdiction, the Superior Court will lack it; if they refuse, the matter can return to Superior Court for the suspended portion.

The court’s analysis of CSU’s declinatory motion

CSU argues that, because the employee-based claims are workplace-related and have been found to fall within the conditions of employment for Concordia’s unionized workforce, the same jurisdictional logic should apply to bar the Superior Court from hearing those claims against CSU as well. CSU invokes the broad, liberal reading of arbitrators’ exclusive jurisdiction over disputes connected to collective agreement conditions and warns of risks of inconsistent judgments and double recovery if parallel proceedings are allowed. The judge, however, places decisive weight on the fact that CSU is not, and has never been, a party to any of the collective agreements at issue. Grievance arbitrators derive their jurisdiction from the collective agreements and the Labour Code; they cannot make binding orders against entities that are strangers to those agreements. While the conduct of CSU or its members may be relevant to whether Concordia breached its collective agreement obligations as employer, an arbitrator lacks personal jurisdiction over CSU as a respondent. In line with Supreme Court guidance, where the arbitrator cannot resolve the whole dispute because a necessary party is outside the scope of the collective agreement, the courts of ordinary jurisdiction retain competence for claims against that third party. Consequently, even though the factual matrix for the claims against CSU overlaps with the employee-based claims against Concordia, the Superior Court remains competent to hear L.S.’s and other employees’ civil claims against CSU. The potential for fragmented proceedings, risk of inconsistent outcomes or issues of apportionment of fault do not justify stripping the Superior Court of jurisdiction that the arbitrator plainly does not possess. The court therefore rejects CSU’s verbal declinatory motion in its entirety.

Fragmentation, access to justice and procedural consequences

The judge acknowledges that his jurisdictional conclusions lead to a fragmented procedural landscape. Unionized employees’ claims against Concordia must proceed, if at all, via grievance arbitration under their collective agreements. Non-unionized employees’ claims against Concordia are suspended pending possible proceedings before CNESST and/or the Tribunal administratif du travail and those bodies’ decisions about their own jurisdiction. Meanwhile, the class action authorization process continues in the Superior Court for: (i) all claims by student representatives D.G. and A.L. against both Concordia and CSU; and (ii) all claims by L.S. and the faculty/staff subgroups against CSU as a third-party defendant, whether unionized or not. The court makes clear that the objectives of class actions—judicial economy, access to justice and behaviour modification—cannot be used to override legislated competence allocations. Nor can concerns about anonymity, confidentiality or the desire to centralize all related disputes in one forum justify extending the Superior Court’s jurisdiction where it is excluded by statute in favour of specialized decision-makers.

Outcome and successful parties

On Concordia University’s written motion in irrecevabilité, Concordia is largely successful. The court declares that it lacks jurisdiction over all of L.S.’s claims against Concordia and over all claims by unionized faculty and staff within subgroups (c) and (d), and formally dismisses the authorization application as against Concordia for those unionized claimants. For non-unionized faculty and staff, the court only partially grants Concordia’s motion, suspending (rather than dismissing) their claims against Concordia pending determinations by CNESST and/or the Tribunal administratif du travail on whether those bodies have jurisdiction under the LATMP and LNT. Because Concordia prevails as to roughly three-quarters of the employee group, the judge orders that Concordia is entitled to its judicial costs on the motion, payable by L.S., although the judgment does not specify the exact monetary amount of those costs. On CSU’s oral motion in irrecevabilité, CSU is wholly unsuccessful. The Superior Court refuses to decline jurisdiction over any of the claims against CSU, holding instead that it remains competent to hear the class action as it concerns CSU, including claims by students and both unionized and non-unionized employees. As a result, the court orders CSU to pay L.S.’s judicial costs associated with CSU’s unsuccessful motion; once again, the specific quantum of those costs is not determined or quantified in the judgment. No compensatory or punitive damages are awarded to any party at this stage, since the decision deals solely with jurisdictional objections before authorization and does not reach the merits of liability or quantum. The net outcome is that Concordia University is the successful party on its own declinatory motion and recovers costs against L.S. on that motion, while L.S. is the successful party against CSU on CSU’s motion and recovers costs from CSU, with the total monetary amounts of these cost awards not specified in the decision and no damages yet granted.