Written by Sharan Johal
Bill C-65, An Act to amend the Canada Labour Code (harassment and violence) comes into force on January 1, 2021. It modifies the current framework under the Canada Labour Code in “the prevention of harassment and violence, including sexual harassment and sexual violence, in workplaces under federal jurisdiction”.1 When Bill C-65 comes into force, the associated regulation, Work Place Harassment and Violence Prevention Regulations (“Regulation”), will also come into force. These regulations cover prevention and protective measures in the context of work place assessment and work place harassment and violence prevention policy, training, and resolution processes.
In the context of workplace harassment and violence prevention policies, the Regulation provides for the essential elements required for such policies. It also provides for procedures that must be included in order to adequately respond to possible incidents of violence and harassment.2
One of the changes that this regulation introduces to the Labour Code is a broader definition for harassment and violence. Harassment and violence will collectively refer to “any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment.”1
Mandatory resolution process in regards to incidents of harassment and violence
Currently, employers are not required to attempt to resolve allegations of harassment. Bill C-65 introduces a specific resolution process for harassment and violence.3
When first notified about the situation, the employer or representative must undertake negotiated resolution, which means that “every reasonable effort to resolve an occurrence”.
If the situation has not been resolved through negotiated resolution, the worker can escalate their complaint to either conciliation (including mediation) or investigation. Conciliation has further requirements under the regulation - conciliation has a foundation of mutual acceptance, where it can start only if both parties agree to use the process. There must be mutual agreement as to who the conciliator will be. If conciliation does not produce a resolution, and the worker goes forward with the choice of an investigation, then there must be an investigation commenced. However, conciliation and investigation cannot occur simultaneously.3
New requirements for employers’ policies, training and risk assessments
Employers are now required to have a policy in place that discusses harassment and violence that is available to all employees. The following elements are required, as per s. 10(2) of the regulation, according to the Regulatory Impact Analysis Statement:4
the employer’s mission statement regarding the prevention of and protection against harassment and violence in the workplace;
a description of the respective roles of the employer, designated recipient, employees, policy committee, work place committee and health and safety representative in relation to harassment and violence in the workplace;
a description of the risk factors, internal and external to the workplace, that contribute to workplace harassment and violence;
a summary of the training that will be provided regarding workplace harassment and violence;
a summary of the resolution process, including
the name or identity of the designated recipient, and
the manner in which a principal party or witness may provide the employer or the designated recipient with notice of an occurrence;
the reasons for which a review and update of the workplace assessment must be conducted under subsection 6(1);
a summary of the emergency procedures that must be implemented when an occurrence poses an immediate danger to the health and safety of an employee or when there is a threat of such an occurrence;
a description of the manner in which the employer will protect the privacy of persons who are involved in an occurrence or in the resolution process for an occurrence under these Regulations;
a description of any recourse, in addition to any under the Act or these Regulations, that may be available to persons who are involved in an occurrence;
a description of the support measures that are available to employees; and
the name of the person who is designated to receive a complaint made under subsection 127.1(1) of the Act.
Under the regulation, the employer must develop training regarding workplace harassment and violence, and must contain the following elements:4
the elements of the workplace harassment and violence prevention policy;
a description of the relationship between workplace harassment and violence and the prohibited grounds of discrimination set out in subsection 3(1) of the Canadian Human Rights Act; and
a description of how to recognize, minimize, prevent and respond to workplace harassment and violence.
This training is required for new employees within the first three months of being hired, or within a year of that day if the workers’ employment began before the regulations came into force. Finally, the training must be given at least every three years.
Note that the changes from Bill C-65 are not limited to those mentioned above. Bill C-65 introduces comprehensive guidelines and requirements for federally-regulated employers in ensuring that workplace harassment and violence is adequately addressed. Bill C-65 also provides for a number of resolution methods and which options a complainant has when bringing forth a claim. It’s necessary for employers to ensure that they are up-to-date with their policies and resolution processes before January 1, 2021.
1Mayra Perez-Leclerc, Legislative Summary of 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 (2019), online: Parliament of Canada <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/421C65E#a2.1.2>
2Sarah Dobson, Bill C-65 to take effect Jan. 1, 2021 (June 2020), online: HR Reporter <https://www.hrreporter.com/employment-law/news/bill-c-65-to-take-effect-jan.-1-2021/330862>
3Veronica Howard, Bill C-65’s Mandatory Resolution Process for Harassment & Violence / Part 3 (May 2020), online: Rubin Thomlinson LLP <https://rubinthomlinson.com/bill-c-65s-mandatory-resolution-process-for-harassment-and-violence/>
4Work Place Harassment and Violence Prevention Regulations: SOR/2020-130 (June 2020), online: Canada Gazette <http://gazette.gc.ca/rp-pr/p2/2020/2020-06-24/html/sor-dors130-eng.html>