Where does the time go? Federally-regulated organizations surely recall the passing of Bill C-65 which amended the harassment and violence provisions of the Canada Labour Code1 ("CLC"). They also no doubt recall the accompanying Work Place Harassment and Violence Prevention Regulations2 ("Regulations") that came into effect in January of 2021, and set out more specific requirements for those employers that fall within federal jurisdiction. It's been three years since the Regulations came into effect and there is now an obligation for employers to update some of these requirements. If you're a provincially-regulated employer and inclined to stop reading because these legislative requirements don't apply to you, please read on. There are opportunities here for your organization as well, even if not mandated by statute.
A quick refresher: Bill C-65 amended the CLC with the intent of strengthening the existing framework for harassment and violence prevention in the workplace. The Regulations more specifically required federally-regulated employers to undertake the following by January 1, 2021:
- conduct workplace assessments to identify risk factors for harassment and violence;
- develop and implement preventative measures based on the identified factors;
- incorporate new material in their harassment and violence prevention policies; and
- train employees on harassment and violence in the workplace.
The Regulations also set out required qualifications for those investigating harassment and violence, as well as a more active role for the "applicable partner"3 as it relates to working with the employer to jointly accomplish certain tasks (including many of those set out above).
Here we are, three years later. As quickly as those years may have flown by, the Regulations require that certain tasks be updated within three years. And so, if you have not already done so, it's time to undertake the following:
- Review the Workplace Assessment
The workplace assessment that was conducted prior to 2021 (to identify the internal and external risk factors that contribute to harassment and violence in the workplace) must now be reviewed, if this has not already been done4. This updated review ensures that the initially identified risk factors are still applicable and determines if there have been any changes that might affect the risk factors.
- Review the Harassment and Violence Prevention Policy
Federally-regulated employers will also remember having to write/revise their policies dealing with harassment and violence prior to 2021 in order to incorporate a variety of legislatively mandated provisions dealing with harassment and violence. If employers have not already done so, it is also now time for a review of this policy.
If you remember last time just working to ensure that the policy contained all of the required elements, this may be a perfect opportunity to look a little deeper at how well the policy is working for your employees. In terms of effectiveness and employee engagement, there is a big difference between a policy that just lists a series of required legislative elements, and one that really works for the people who might need/want to use it. Consider perhaps conducting a workplace review/assessment process to get a sense from your employees of how the policy has been received and whether they are finding it easy to understand and use.
- Update Training
One of the truly progressive aspects of the Regulations was its requirement that federally-regulated employers conduct specific training on harassment and violence (with specific content) in the workplace, and update this training every three years. Anyone doing work in the harassment/violence space knows that training is not a "one and done" proposition. It must be done in a meaningful way and done regularly to have any real impact on employees. Now is a perfect opportunity to consider the next round of training and how to use it to meaningfully address harassment and violence in your workplace.
Start with a review of the prior training delivered with a view to finding ways to enhance the future training. Assess the trends in your workplace in the last three years: have most of the complaints been about a specific type of harassment? Have employees asked a lot of questions about a particular aspect of the policy? If feedback about the prior training was obtained, review it, and note what employees liked and did not like (and be sure to obtain feedback on the updated training). If the training was provided virtually (which it may well have been due to COVID-19 restrictions), consider the benefits of in-person training (discussed by our colleague Frédérick J. Doucet in a recent blog post5). In short, there is a real opportunity to go beyond having the training be simply a "check the box" exercise in adhering to legal obligations.
This three-year milestone also provides an opportunity to review investigation practices. While there haven't been many cases specifically considering the Bill C-65 amendments, a recent decision is a reminder about the importance of investigation best practices. In Marentette v. Canada (Attorney General),6a complainant sought judicial review and an order setting aside an investigation report adopted by the employer following his complaint pursuant to the Regulations. The complainant (principal party) alleged workplace harassment and violence and requested an investigation. An investigation commenced (after some delay) during which the investigator interviewed the complainant only once. More than six months after the interview (and more than 18 months after the notice of occurrence7), the complainant received a copy of the final report in which none of the allegations were substantiated. The investigator interviewed four responding parties and one witness but failed at any point to advise the complainant about the existence of evidence that was contrary to his own version of events, and thereby failed to allow the complainant an opportunity to respond to such evidence.
The complainant argued that he was denied procedural fairness, while the employer argued that nothing in the Regulations specifically required a practice of sharing such contrary evidence with a party. Even after reviewing the Regulations, the Court determined that there was a duty to disclose contrary evidence, noting that the duty of procedural fairness (confirmed by various courts, including the Supreme Court of Canada) does not require repetition in regulations.
Conclusion
Bill C-65 and the Regulations made impactful changes to the prevention of workplace harassment and violence for federally-regulated entities. The three-year legislative requirements for federally-regulated employers are a good reminder that seeking to address harassment and violence in our workplaces is an ongoing exercise. And even if your organization is provincially-regulated, there is no reason that you cannot undertake the same initiatives. Harassment and violence in our workplaces continue, and so must our work to combat it.
Footnotes
1. R.S.C. 1985, c.L-2.
2. SOR/2020-130.
3. Section 2 of the Regulations defines this as the policy committee (where applicable) or the workplace committee or the health and safety representative.
4. Certain circumstances contemplated by the Regulations may have already required such a review, such as a change to the risk factors originally identified.
5. Frédérick J. Doucet, “The human touch: Elevating respect in the workplace through in-person learning experiences,” April 8, 2024, Rubin Thomlinson's Insights, online: https://rubinthomlinson.com/the-human-touch-elevating-respect-in-the-workplace-through-in-person-learning-experiences/.
6. 2024 FC 676 (CanLII).
7. Interestingly, the court did not speak to the delay even though section 33 of the Regulations requires that employers complete the resolution process within one year of the filing of the notice of occurrence. We will be on the lookout to see if that is ever addressed in a future decision.
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