What will be required?
Comment


The federal government has published the draft Workplace Harassment and Violence Prevention Regulations. The regulations will support the recently passed Bill C-65 and will replace the current workplace violence obligations in the Canada Occupational Health and Safety Regulations, as well as certain related provisions in the Maritime Occupational Health and Safety Regulations and the On Board Trains Occupational Safety and Health Regulations.

What will be required?

If implemented as drafted, the new regulations will require employers to do the following, jointly with the policy committee or, if there is no policy committee, with the workplace committee or health and safety representative, among other things.

Develop, make available and update policies
The policy must contain the required elements, such as:

  • a mission statement;
  • the role of workplace parties;
  • the factors that contribute to violence and harassment;
  • the training that will be provided;
  • a resolution process;
  • a notification process for external dangers (eg, stalking); and
  • emergency procedures.

Conduct, monitor and update workplace assessments
The assessment must identify risks of harassment and violence in the workplace and develop and implement preventive measures. This assessment must be done by individuals who are qualified by training, education or experience. The assessment must be monitored for accuracy and reviewed and updated at least every three years. A review must also be undertaken:

  • where the violence and harassment resolution process cannot proceed because the victim wishes to remain anonymous or chooses not to proceed; or
  • when the respondent is not an employee.

Develop and make available emergency procedures
Procedures must be developed and implemented if a harassment and violence occurrence poses an immediate danger to the health and safety of employees or when there is a threat of such an occurrence.

Develop, deliver and update training
Training must be developed and delivered to new employees within three months and again at least every three years. The training must cover, among other things:

  • the policy;
  • the relationship between harassment and violence and human rights protections under the Canadian Human Rights Act;
  • how to recognise, minimise and prevent harassment and violence;
  • crisis prevention;
  • personal safety and de-escalation techniques; and
  • how to respond appropriately to different incidents.

Make support measures available
Employers must make information available about support services that employees may access in their geographical area.

Follow prescribed resolution process
The new process requires the employer to follow these prescribed steps:

  • Designate a recipient – the employer must designate a person to receive notification of an occurrence of violence or harassment. Notice may be given anonymously by the victim or a third party (eg, a lawyer).
  • Contact the victim and respondent – the employer must contact the victim within five days of learning of an occurrence to:
    • confirm receipt of notice;
    • inform the victim of the policy;
    • explain the resolution process; and
    • inform the victim of the right to be represented during the resolution process.

The employer must also inform the respondent of the same information. If the notice was received from a non-anonymous third party, the employer must contact the third party within five days.

  • Early resolution– the employer must make every reasonable effect to resolve the occurrence. This must be concluded within 180 days of the original notification. If it is not resolved, the victim can complete the resolution process by conciliation or investigation.
  • Conciliation – this is available only if the victim and respondent agree to the process and on the person who will facilitate it. Conciliation must also be completed within 180 days of the original notification. There is no further guidance in the regulations about requirements for conciliation.
  • Investigation – if conciliation is unavailable or unsuccessful, the employer must provide notice to the victim and respondent that an investigation will be conducted.
  • Select an investigator – the employer, victim and respondent must agree on an investigator. If they cannot, they can apply to the minister within 60 days for one to be selected. The investigator cannot be the respondent or anyone to whom the respondent directly reports. They must:
    • be trained in investigative techniques;
    • have knowledge, training and experience that is relevant to harassment and violence in the workplace; and
    • have knowledge of the Canada Labour Code, the Canadian Human Rights Act and other relevant legislation.

The investigator must provide a statement of their qualifications. The employer cannot unilaterally propose a list of investigators. Any list of investigators must be developed in consultation with the policy committee or, if there is no policy committee, with the workplace committee or health and safety representative.

  • Provide information to the investigator – the employer must provide the investigator with all relevant information.
  • Investigation and two reports – the investigator must investigate and provide the employer, victim and respondent with a final report and a summary report. The final report must contain a detailed description of the occurrence, the investigation methodology, the investigator's analysis and findings and recommendations to eliminate or minimise the risk of a similar occurrence. The summary report must contain the analysis, the findings, the recommendations and a general description of the incident that does not disclose the identity of the victim or respondent. Neither the final nor summary report can identify, directly or indirectly, any third party or witness.
  • Consider and implement recommendations – the summary report is provided to the policy committee or, if there is no policy committee, to the workplace committee or health and safety representative. Together with the employer, they must consider which recommendations should be implemented and then implement those recommendations.
  • Investigation deadline – the investigation must be completed within one year of the notice of an occurrence being received.
  • Monthly status updates during resolution process – the employer must provide monthly status updates to the victim and respondent. For the victim, these updates must begin in the month after notification has been received. The respondent must start receiving updates in the month after they have been contacted. This duty ends in the month in which the resolution process is completed.
  • End of the resolution process – the resolution process will be ended if early resolution succeeds, the victim decides before an investigation not to proceed and the employer updates the workplace assessment, or where the investigator has provided the reports and the selected recommendations have been implemented.
  • Keep prescribed records – the employer must keep the following records (among others), for 10 years:
    • copies of the employer's decisions if it is unable to agree with the policy committee, workplace committee or health and safety representative on an issue;
    • all records of notifications;
    • a record of each missed timeline met with a reason; and
    • a copy of the inspectors' reports.
  • Semi-annual report to the committee or representative – every six months the employer must report to the policy committee, workplace committee or health and safety representative the following information about occurrences settled by early resolution or conciliation:
    • the total number of occurrences resolved through settlement;
    • the number of occurrences relating to sexual harassment and violence and non-sexual harassment and violence;
    • the locations where the occurrences took place and the total number per location;
    • the relationship between the victim and respondent, including the total number per relationship type; and
    • the average resolution time in months.
  • Annual report to minister – the employer must file an annual report with the minister specifying:
    • the number and type of occurrences that have taken place in the past year;
    • the number that have resulted in death;
    • the prohibited ground of discrimination (if any);
    • the locations where the occurrences took place and the total number per location;
    • the relationship between the victim and respondent, including the total number per relationship type;
    • the manner in which occurrences were resolved, including the total number per resolution type; and
    • the average resolution time in months.
  • Fatality report within 24 hours – the employer must notify the minister within 24 hours of being notified of an occurrence that results in an employee's death.

Comment

The proposed regulations were available for public comment until 26 May 2019.

Employers were strongly encouraged to participate and make their views known. These are detailed regulatory provisions that will increase the administrative burden and costs for employers. They also create new fronts for dispute and litigation by unions and employees. This is particularly true since employees are being given an undefined right to representation in the resolution process.

For further information on this topic please contact Shane D Todd or Cathy Chandler at Fasken by telephone (+1 416 366 8381) or email ([email protected] or [email protected]). The Fasken website can be accessed at www.fasken.com.