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Bill C-65’s new rules on workplace harassment & violence | Part 1

While you’re here, you may wish to attend one of our upcoming workshops:

Basic Workplace Investigation Techniques
13 Jun - 15 Jun at The Westin Calgary (Downtown)
If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you are not alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.

2021 will see important shifts in how employers in federally-regulated industries¹ prevent and address workplace harassment and violence. New rules will come into effect on January 1, 2021, that will increase employers’ responsibilities to respond to incidents of harassment and violence, and also take steps to prevent any such incidents from occurring. I have written a series of blogs about these requirements so that employers and investigators can better prepare for what’s coming.

In this opening post, I will provide some background on the forthcoming requirements under the changes to the Canada Labour Code (CLC) and its regulations. I’ll begin with some context.

In 2017, the federal government tabled new anti-harassment and anti-violence legislation with 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. Together with the accompanying regulations, Bill C-65 amends the CLC to mandate that employers take a more proactive approach to preventing and resolving incidents of workplace harassment and violence.

To comply, employers will need to adjust their harassment and violence prevention policies, incorporate new material into their anti-harassment and anti-violence training to employees, and investigate incidents of harassment and violence from a slightly wider group of workers than what is required today. There are new obligations for employers to attempt to resolve incidents of harassment and violence, different rules on who can act as an investigator in these cases, and how (and by whom) an investigator must be selected. Finally, employers will be required to conduct pre-emptive workplace assessments to identify risks and incorporate the results of these assessments into their policies, procedures, and training.

A new definition

In its current form, the CLC and its accompanying regulations include definitions for violence and sexual harassment, but not workplace harassment. C-65 introduces the following combined definition of harassment and violence into the CLC:

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.

This broader definition incorporates general harassment into the CLC for the first time. It also replaces the current definitions of sexual harassment and violence. Another important development is that the “psychological injury or illness” component will enshrine a positive obligation on employers to protect employees from psychological harm.

Stay tuned for Part 2 of this series, where I’ll take a deep-dive into prevention – that is, how employers will be required to prevent incidents of harassment and violence in the workplace, and what steps employers can take today to ensure compliance

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¹ Here is a list of federally-regulated industries.