November 21, 2017

Bill C-65, An Act to amend the Canada Labour Code (harassment and violence)

In the midst of the high-profile “#metoo” campaign currently taking place on social media around the world, the federal government has introduced potential changes to the Canada Labour Code (the “Code”) to more directly address workplace harassment.
Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No.1, (the “Bill”) was introduced on November 7, 2017.  If passed, it would amend the Code and clarify the obligations of federally-regulated employers to prevent and protect against workplace harassment and violence.
Currently, Part II of the Code requires federally-regulated employers to take a series of prescribed steps to prevent and protect against “violence” in the workplace.  These steps include assigning a competent investigator who is impartial and has knowledge, training, and experience in these matters to make conclusions and recommendations in the event the issue cannot be resolved with the complainant directly.
For the purposes of the Code, workplace violence is currently defined as, “any action, conduct, threat or gesture” directed at an employee in their workplace that can reasonably be expected to cause “harm, injury or illness to that employee”.  While this definition has been interpreted as broad enough to include harassment, the application of the violence provisions to harassment is not entirely clear; it may be debatable whether the alleged harassment could reasonably be expected to “cause harm, injury or illness to that employee”. If the allegations are determined not to constitute workplace violence, as defined, the investigation provisions of the Code are not engaged.
The courts have provided some guidance on the issue.  In Canada (Attorney General) v. PSAC, 2015 FCA 273, the Federal Court of Appeal accepted the inclusion of harassment in the Code’s definition of “violence” and denied the employer’s attempt to screen out harassment complaints from the investigation requirements of the Code on the basis that a more narrow interpretation would be at odds with the Code’s spirit and intent.  Consequently, the ruling means that the obligation to appoint a competent investigator regarding alleged bullying or other harassment is generally triggered upon the failure to resolve the matter informally.
The proposed amendments have addressed this issue by specifically including harassment as a term in Part II of the Code and by requiring employers to follow the Code’s investigation requirements for all allegations that may meet the definition of harassment.  However, the Bill does not contain a proposed definition of harassment.  Rather, the Bill provides that the definition of harassment, as well as the procedure for investigating harassment complaints, will be set by regulation.
Specific highlights of the proposed amendments include:

• The addition of “physical or psychological injuries and illnesses” as a preventative purpose of Part II of the Code (s. 122.1).
• A specific duty on employers to “investigate, record and report… all occurrences of harassment or violence” in accordance with the regulations (s. 125(1)(c)).
• A specific duty on employers to (s. 125(1)(z. 16)):
  • take the prescribed measures with respect to harassment and violence in the work place; and
  • to respond to occurrences of harassment and violence in the work place; and
  • to offer support to employees affected by harassment and violence.
• The exclusion of complaints relating to harassment and violence from the internal investigation process as set out in the Code’s Internal Complaint Resolution Process (s. 127.1(3)).

The Bill has just taken its first legislative step.  It remains very early in the process and the final form of the Bill is still uncertain; however, federally-regulated employers would be well advised to take stock of their current practices (to ensure compliance with existing obligations) and remain up-to-date on the progress of the Bill.  This will ensure employers are prepared to make any necessary internal changes to satisfy their new obligations, once those obligations are finalized.  Further updates and information will be provided as the Bill progresses.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer
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