On November 7, the federal Minister of Employment, Workforce Development and Labour, the Honourable Patty Hajdu, tabled Bill C-65 in order to strengthen the existing legal frame for the prevention of harassment and violence in the workplace. This Bill modifies Part II of the Canada Labour Code1 and the Parliamentary Employment and Staff Relations Act2.
The existing legal frame
Currently, employees working for employers under federal jurisdiction, including those in banking, international or interprovincial transportation and communications (radio broadcasting, television broadcasting, cable broadcasting, internet services, telephony services) benefit from the protections afforded by the Code and the regulations thereunder, and the Canadian Human Rights Act3 (the “CHRA”).
First of all, sections 247.1 to 247.4 of the Code provide that every employee is entitled to employment free of sexual harassment, and impose various duties on employers in that regard.
Section 14 of the CHRA prohibits, in matters related to employment, the harassment of an individual on a prohibited ground of discrimination. Section 3 of that Act sets out those grounds: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. Consequently, harassment based on any other ground is not prohibited by the CHRA.
Furthermore, the Canada Occupational Health and Safety Regulations4 (the “Regulations”) provide that an employer must put control mechanisms in place to prevent possible workplace violence, and suppress it to the extent possible. Section 20.2 of the Regulations defines workplace violence as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee”.
As opposed to employees working for an employer under provincial jurisdiction, for whom a statutory regime prohibiting psychological harassment was introduced into the Labour Standards Act5 in 2002, no such regime has heretofore been expressly provided for employees under federal jurisdiction, although many psychological harassment situations can be caught by the prohibition against sexual harassment in the Code, the prohibition on harassment in the CHRA, or by the Regulations under the Code requiring employers to prevent or suppress violence in the workplace.
The new regime proposed by Bill C-65
Whereas Part II of the Code currently states that its purpose is to prevent employment-related accidents and injury to health, Bill C-65 seeks to broaden that scope: “The purpose of this Part is to prevent accidents and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this Part applies.” Thus, the bill specifies that injuries and illnesses may be either physical or psychological.
The bill also imposes certain obligations on employers with the aim of protecting employees. Employers are now required to investigate not only occupational accidents and illnesses but also all occurrences of harassment or violence known to them. Employers must also take the measures provided for in the regulations to prevent and protect against harassment and violence in the workplace, and respond to any such occurrences. The bill also requires employers to offer support to employees affected by harassment and violence in the workplace. Harassment and violence are however not defined in the bill, which provides that those terms will be defined in the regulations.
In addition to broadening the scope of Part II of the Code, the amendments specify the framework for responding to occurrences of harassment and violence.
First of all, an employee who reasonably believes that there has been a contravention of the provisions of Part II of the Code dealing with harassment or violence, or that an employment-related accident, injury or illness is likely to occur, must make a complaint to his or her supervisor. This triggers an internal process for handling the complaint.
If the complaint ultimately remains unresolved, the employee or the supervisor may refer it to a chairperson of the workplace committee or to the health and safety representative6, unless the complaint relates to an occurrence of harassment or violence. In those situations, the complaint must be referred to the Minister and the latter will investigate it, unless of the opinion that the matter is trivial, frivolous or vexatious, or that the matter has been adequately dealt with according to a procedure provided for in the Code, any other Act of Parliament or a collective agreement. In such cases the Minister must inform the employer and the employee that no investigation will be conducted. If the bill is adopted as is, it will be very important for employers to include in the collective agreement a mechanism for handling complaints of harassment and violence.
It is interesting to note that the bill mandates a confidential process for dealing with complaints of harassment and violence. First of all, contrary to other complaints, in such situations the workplace committee cannot be involved. The bill further provides that neither the Minister nor the employer can provide the committee with information that is likely to reveal the identity of a person who was involved in an occurrence of harassment or violence in the workplace, without that person’s consent.
Application of the bill to parliamentary employees
The second part of the bill amends the Parliamentary Employment and Staff Relations Act insofar as Part II of the Code applies to parliamentary employers and employees. It is interesting to note that sections 87 and 88 of that statute already provide for the application of Part II of the Code to such employers and employees, but to date those sections are still not in force.
Finally, it should be noted that the bill in no way limits the powers, privileges and immunities of the Senate and the House of Commons or their members.
As mentioned above, the bill does not define the terms harassment and violence, but provides that they will be defined by regulation. Moreover, while the Code does define sexual harassment and stipulates specific employer obligations in that regard, the bill as drafted would repeal that section of the Code. Does that mean that the definition of harassment under the regulations will include sexual harassment? In our view the definition of a concept as important as harassment should be in the Code rather than a regulation. Moreover, in the event that the regulatory provisions are not adopted at the same time as Bill C-65, there may well be a legal vacuum for sexual harassment situations.
This is definitely a bill whose development should be closely monitored, given the important and highly sensitive nature of the subject.