The federal government has published the draft Work Place Harassment and Violence Prevention Regulations, which will support the recently passed Bill C-65. The Regulations 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, among other things, the employer 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:
• Develop, make available, and update a policy. The policy must contain required elements including, among other things, 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 (like stalking), and emergency procedures.
• Conduct, monitor and update a workplace assessment. 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 recognize, minimize and prevent harassment and violence, crisis prevention, personal safety and de-escalation techniques, and how to respond appropriately to different types of occurrences.
• Make support measures available. Employers must make information available about support services that employees may access in their geographical area.
• Follow the prescribed resolution process. The new process requires the employer to follow these prescribed steps:
• Designate recipient. The employer must designate a person to receive notification of an occurrence of violence or harassment. Notice may be given by the victim, or a third party (like a lawyer). Notice may be given anonymously.
• Contact 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 the occurrence is not resolved, the victim has the option to complete the resolution process by conciliation or investigation.
• Conciliation. Conciliation is only available 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, if any.
• Investigation. If conciliation is not available or unsuccessful, the employer must provide notice to the victim and respondent that an investigation will be conducted.
• Selection of Investigator. The employer, the victim, and the 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. He or she must be trained in investigative techniques, have knowledge, training and experience that is relevant to harassment and violence in the workplace, 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 needs to 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 investigator. The employer must provide the investigator with all relevant information
• Investigation and two reports. The investigator must investigate and provide the employer, the victim and the 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 minimize the risk of a similar occurrence. The summary report must contain the analysis, findings, and recommendations, but only 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 recommendation(s) should be implemented and implement those recommendations.
• Investigation Deadline. The investigation must be completed within one year after the day that notice of an occurrence is received.
• Monthly status updates during resolution process. The employer must provide monthly status updates to the victim and the respondent beginning, for the victim, in the month after notification is received, and, for the respondent, in the month after he or she is contacted. This duty ends in the month in which the resolution process is completed.
• End of resolution process. The resolution process is ended if early resolution is successful, 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 is required to keep, for 10 years, records including among other things copies of decisions made by the employer if 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 timeline not met with a reason for that missed timeline, and a copy of the inspectors' reports.
• Semi-annual report to 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: (i) total number of occurrences resolved by settlement route, (ii) the number of occurrences that were related to sexual harassment and violence and non-sexual harassment and violence, (iii) the locations where the occurrences took place and total number per location, (iv) the relationship between victim and respondent including total number per relationship type, and (v) the average resolution time in months.
• Annual report to minister. The employer must file an annual report with the minister specifying (i) the number and type of occurrences that have taken place in the last year, (ii) the number that have resulted in death, (iii) the prohibited ground of discrimination (if any), (iv) the locations where the occurrences took place and total number per location, (v) the relationship between victim and respondent including total number per relationship type, (vi) the manner in which occurrences were resolved including the total number per resolution type and (vii) 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 the death of an employee.
The proposed Regulations will be available for public comment until May 26, 2019 before they are finalized.
Employers are 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.
Shane Todd is a partner with Fasken Martineau DuMoulin LLP in Toronto, practicing labour, employment, and human rights law. He can be reached at (416) 868-3424 or firstname.lastname@example.org. Cathy Chandler is an Occupational Health and Safety consultant with Fasken Martineau’s Labour, Employment and Human Rights group in Toronto. She can be reached at (416) 868-7812 or email@example.com. This article was reprinted with the permission of Fasken, an international business law and litigation firm. You can read Fasken's weekly bulletin, "The HR Space" here.