The rules around investigating incidents of workplace harassment and violence will shift once Bill C-65, An Act to amend the Canada Labour Code (harassment and violence)¹ comes into force on January 1, 2021.

I have written about the changes that the Bill and its regulations will bring to federally-regulated industries², including an expanded definition of harassment and violence, additional requirements for employers’ policies, training, and risk assessments, and the new resolution process to deal with incidents harassment and violence. In this blog, I’ll look at how an investigator must be selected under Bill C-65, and what the investigation report must include. But first, a little context:

In accordance with the regulations, Bill C-65 enshrines a duty for the employer to investigate, record and report all occurrences of harassment and violence of which the employer or the designated recipient becomes aware. In the current regime under the Canada Labour Code (CLC)—i.e., pre-Bill C-65—there is no explicit duty to investigate harassment – only violence.

Who can investigate under the current regime?

At present, the current regulations state that only a “competent person” can investigate an incident of workplace violence. This person must be someone who:

• Is impartial and is seen to be impartial by the parties
• Has knowledge, training and experience in issues related to workplace violence
• Has knowledge of relevant legislation
• May be an employee of the workplace or an outside contractor

The current regulations require that an employer consults the applicable partner (i.e., the Policy Health & Safety Committee (PHSC), or if there is no PHSC, then the Workplace Health & Safety Committee or Representative), on the decision about who will act as the investigator. However, the employer and the applicable partner do not have to reach an agreement on who the investigator will be.

A complainant or a respondent may disqualify an investigator by challenging that person’s neutrality. It is recommended that the employer, alongside the applicable partner, establish a list of competent persons ahead of time.

What will change under Bill C-65?

The regulations state that the employer or the designated recipient will be required to select the investigator, either from a list of investigators that was jointly developed by the employer and the applicable partner (where such a list exists), or if there is no agreement within 60 days after the day on which the notice is provided, then a person from among those whom the Canadian Centre for Occupational Health and Safety identifies as having the following knowledge, training and experience.

The investigator must be trained in investigative techniques, have knowledge, training and experience that is relevant to harassment and violence in the workplace, and have knowledge of the Act, the Canadian Human Rights Act and any other legislation that is relevant to harassment and violence in the workplace. The investigator must not be in a conflict of interest in respect of the occurrence of harassment or violence.

What employers need to know:

1. There are increased competency requirements for the investigator, such as in investigative techniques – not just knowledge about issues related to workplace violence.

2. The selection of the investigator must be made by mutual agreement between the employer and the designated recipient. Previously, the employer had to consult the applicable partner (but they did not have to agree).

3. Together with the applicable partner, employers might consider reviewing their roster of investigators to ensure that the investigators meet the new competency requirements for investigations of harassment, in addition to workplace violence.

What does the investigation report need to include?

The current regulations state that the investigator shall provide the employer with a written report that includes conclusions and recommendations. The employer is required to keep a record of the report, provide the workplace committee (or the health & safety committee) with the report, and adapt or implement controls to minimize the risks of workplace violence from reoccurring. The IPG³ for the regulations state that the employer must also provide a copy of the report to the parties.

Under Bill C-65’s final regulations, the investigator must provide the employer, the workplace committee or health and safety representative, the designated recipient (if applicable), and each of the parties with a copy of the final report. The final report must not reveal the identities of the people who were involved in the occurrence. It must include the following elements:

• A general description of the incident
• The investigator’s conclusions, including those relating to the circumstances in the workplace that contributed to the occurrence
• The investigator’s recommendations to eliminate or minimize the risk of a similar occurrence

What employers need to know:

1. There are new requirements for investigation reports.

2. The obligation to provide the parties with copies of the investigation report might impact how the report is written and how it must be redacted.

Whether reopening for business or remaining on lockdown, employers may wish to take this time to review their policies and protocols regarding investigations to ensure that they comply with Bill C-65 and the regulations – before the legislation comes into force.

This is the fourth installment in the C-65 series – the first blog can be found here, the second blog (on preventing harassment & violence), can be found here. The third blog (on Bill C-65’s Mandatory Resolution Process for Harassment & Violence) can be found here.

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¹ The full name of the Act is 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.

² Here is a list of federally-regulated industries.

³ Interpretations, Policies and Guidelines, Violence prevention in the workplace – 943-1-IPG-081.