Chad Sullivan and Kathleen Nash

In late June 2020, the Federal Government released the official version of the new Work Place Harassment and Violence Prevention Regulations¹ (“Regulations”) along with Bill C-65, the federal anti-harassment and violence legislation.

The Regulations streamline and consolidate harassment and violence provisions for all federally regulated work places that fall under Part II of the Canada Labour Code,² which includes private sector employers engaged in a federal work or undertaking (e.g. air transportation, telecommunications, or banking), federal Crown corporations, and those in the federally regulated public sector. The Regulations replace a number of provisions in the Canada Labour Code as well as other regulations which include violence prevention provisions in order to provide a more comprehensive regulatory scheme in one regulation.³

The Regulations will come into force on January 1, 2021, less than six months after their publication, providing employers with a short time frame to prepare for their enhanced obligations under the Regulations.

Our last update on the Regulations (found here), provides a comprehensive overview of the Regulations and outlines what employers need to know before the Regulations come into force.

Since our last update, the Federal Government has updated a few aspects of the Regulations including the following:

1. “Designated recipient”

At the time of our previous update, the Regulations allowed the employer to designate an individual to receive notification of an occurrence. In the current Regulations, an employer can designate a work unit in a work place or an individual to receive notification of an occurrence. The individual or the work unit is referred to as the “designated recipient” in the Regulations.

2. Training

Our previous update sets out in detail the training employers and the applicable partner (a policy committee or a workplace committee or the health and safety representative) must develop and provide to employees, the employer, and the designated recipient.

Employers must ensure that employees are provided with the required training within three months after the day on which their employment begins or, for employees whose employment began prior to January 1, 2021, within one year after January 1, 2021. Employers must also undergo the required training within one year after January 1, 2021. Training must then be completed at least once every three years after that.

3. Resolution of an “occurrence”

(a) Notification to parties

The Regulations now provide the employer or designated recipient with seven days (rather than five as indicated in our previous update) to contact the principal party (the employee or employer who is the object of an occurrence) and inform them:

• that their notice of occurrence has been received or they were identified as a principal party;
• how to access the work place harassment and violence prevention policy;
• how each step in the resolution process works; and
• that they may be represented during the resolution process.

As indicated in our previous update, there is no time limit for when the employer or designated recipient must contact the responding party (the person who is alleged to be responsible for the occurrence; if involved).

(b) Negotiated resolution

Within 45 days after the day on which notice of an occurrence is provided, an employer or designated recipient, the principal party and the responding party must begin to make every reasonable efforts to resolve an occurrence. There is no longer a requirement that the negotiated resolution be concluded within 180 days; rather, the parties must begin to attempt to resolve the occurrence within 45 days of the day on which notice of the occurrence was provided.

(c) Limitation period

The Regulations provide for a one-year limitation period for the completion of the resolution process (either conciliation or an investigation). The limitation period begins on the day on which notice of the occurrence is provided and the onus is on the employer to ensure that the resolution process is completed within the one year period.

The limitation period may be extended if either the principal party or the responding party is temporarily absent from work for more than 90 consecutive days after the day on which notice of the occurrence is provided. If this occurs, the resolution process must be completed within the later of one year after the day on which notice of the occurrence is provided or within six months after the day on which the party returns to work.

4. Investigator’s report

Our previous update indicates that, if an investigation is requested, the investigator must provide both a final report and a summary report. The Regulations now only require the investigator to provide a final “investigator’s report” after the conclusion of the investigation. The investigator’s report must set out the following information:

1. a general description of the occurrence;
2. the investigator’s conclusions, including those related to the circumstances in the work place that contributed to the occurrence; and
3. their recommendations to eliminate or minimize the risk of a similar occurrence.

The investigator’s report must not reveal, either directly or indirectly, the identity of persons who are involved in an occurrence or the resolution process for an occurrence under the Regulations. A copy of the investigator’s report must be provided to the principal party, the responding party, the work place committee or health and safety representative, and a designated recipient.

5. Updates on the status of an “occurrence”

After notice of an occurrence is provided, the Regulations require employers (or designated recipients) to provide monthly updates regarding the status of the resolution process (either conciliation or an investigation) as follows:

• to the principal party beginning on the first month after the month in which notice is provided; and
• to the responding party beginning on the first month after the month in which the responding party is first contacted by the employer or designated recipient concerning the occurrence.

The monthly status updates end on the month in which the resolution process is completed.

6. Record keeping

Lastly, the Regulations require an employer to keep the following health and safety records for a period of 10 years:

1. the work place harassment and violence prevention policy;
2. the documents that form part of the work place assessment;
3. a copy of the documents that form part of each review and update of the work place assessment;
4. for each instance where the employer and the policy committee, the work place committee or the health and safety representative are unable to agree on a matter that is required by these Regulations to be jointly done by them, a record of the employer’s decision in that matter and the reasons for that decision;
5. a record of each notice provided under subsection 15(1) and of each action taken in response to the notice;
6. for each instance where a time limit set out in section 33 [the limitation period noted above] is not met, a document that sets out the reason for the delay;
7. a copy of each report that is prepared by an investigator under subsection 30(1);
8. a copy of each annual report; and
9. a copy of each fatality report provided under subsection 37(1).

¹ SOR/2020-130.
² RSC, 1985, c L-2.
³ Government of Canada, Regulatory Impact Analysis Statement (Executive Summary – Work Place Harassment and Violence Prevention Regulations) (PC 2020-456, June 17, 2020).

This article is provided for general information only. If you have any questions about the above, please contact a member of our Labour and Employment group.

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