The contents of this article apply to federally-regulated employers only.
On November 30, 2015, the Federal Court of Appeal released an
important judgment regarding the duty of federally-regulated
employers to appoint a "competent person" to investigate
a workplace violence complaint under Part XX of the Canada
Occupational Health and Safety Regulations ("the
In that case, a poultry inspector at the Canadian Food
Inspection Agency (the "Employer" ) submitted a written
complaint alleging favouritism, unfair treatment, humiliation and
disrespectful treatment in the workplace, without referring
specifically to "workplace violence" as such or
identifying the complaint as a workplace violence complaint under
In response, the Employer appointed one of its directors to
undertake a "fact-finding" mission to review the concerns
raised by the complainant. The conclusion of the fact-finding
process was that the allegations, if believed to be true, did not
constitute harassment and thus did not warrant further
After a health and safety officer issued a direction pursuant to
the Canada Labour Code indicating that the Employer had
failed to appoint a "competent person" as required by the
Regulations, the Employer filed an appeal to the Appeals Officer.
The latter allowed the appeal and set aside the direction on the
basis that the Employer had not been made aware of the alleged
workplace violence and that it could not have been the
legislator's intent to require that an investigator be
appointed for every complaint qualified by a complainant as
"workplace violence", regardless of the facts
The issue to be determined by the Federal Court of Appeal (the
"Court" ) was "whether the Appeals Officer could
find that an employer is entitled to assess a complaint of
workplace violence before being required to appoint a
'competent person' to investigate the matter." The
Court agreed with the application judge and found that the Appeals
Officer erred in concluding that the Employer had not been aware of
a workplace violence allegation and was therefore under no
obligation to appoint a competent person to investigate the matter.
In making that determination, the Court mentioned that "the
appointment of a competent person, that is, a person who is
impartial and is seen by both parties to be impartial, is an
important safeguard to ensure the fulfillment of [the
The Court ruled that the complaint was not clearly vexatious or
frivolous in the present case, and that it was not the
employer's role to decide at that early stage, without even
meeting with the employee, whether the particular conduct alleged
was serious in the circumstances so as to constitute workplace
violence. The Court held that such determination can only be made
by a competent person with a full understanding of the
circumstances, following an investigation under the Regulations.
Therefore, a competent person should have been appointed by the
Employer to investigate the matter.
It should be noted that, in the circumstances of the case before
the Court, it was not disputed that workplace violence may
encompass harassment, and that psychological harassment can
reasonably be expected to cause harm or illness in some
Impact On Employers
As a result of this decision by the Federal Court of Appeal, it
is now clear that, unless it is plain and obvious on its face that
the allegations do not relate to workplace violence, employers have
a duty to appoint a competent person to investigate a complaint of
workplace violence if the matter remains unresolved. Thus, while
employers are entitled to undertake a preliminary review of a
complaint with a view to resolving the matter informally with the
complainant, any "full-fledged investigation" must be
left to a competent person agreed to by the parties and with
knowledge, training and experience in these matters.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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