Canada: Bill 168: Workplace Violence and Workplace Harassment Amendments to the Occupational Health and Safety Act

Last Updated: April 16 2010
Article by Daniel Pugen

Most Read Contributor in Canada, September 2018

On June 15, 2010, Bill 168 will become law. Employers will be required to devise workplace violence and harassment policies, develop programs to implement such policies, and engage in assessments to measure workplace violence risks. In addition, work refusal rights and the duties of employers and supervisors under the OHSA have both been clarified to specifically apply to workplace violence.

How are "Workplace Violence" and "Workplace Harassment" Defined?

"Workplace violence" is defined under Bill 168 as: (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker; (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; or (c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. Notably, the definition of "workplace violence" is not limited to acts, attempts or threats made by a worker against a worker (though the conduct must occur in the "workplace").

"Workplace harassment" is defined under Bill 168 as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome." Unlike "harassment" under the Ontario Human Rights Code,1 conduct does not have to be related to a prohibited ground of discrimination (e.g., sex, age, ethnicity, disability, religion, etc.) to be considered "workplace harassment." 2

Assessments and Reassessments

Bill 168 requires employers to assess the risk of workplace violence, but not of workplace harassment.

To assess workplace violence, employers must take into account the conditions of both its own workplace and that of similar workplaces.

Employers also have an obligation to report on the results of the assessment to: (a) the joint health and safety committee, if one exists; (b) the health and safety representative, in smaller workplaces; or (c) the workers directly if there is no such committee or representative. If the assessment is in writing, then a copy must be provided.

Employers must reassess the workplace for workplace violence risks to ensure the workplace violence policy and program protects workers. Risk assessments should be well-documented and should be conducted by competent individuals who have broad experience and understanding of the workplace. Bill 168 requires that the reassessments occur "as often as is necessary." It is suggested that such reassessments occur after an incident of workplace violence or annually (whichever occurs first).

Workplace Violence and Harassment Policies and Programs

Bill 168 requires employers to prepare policies pertaining to workplace violence and workplace harassment. The policy must be in writing and posted in conspicuous places in the workplace (unless there are less than five employees in the workplace). The policies must be reviewed annually.

Bill 168 also requires employers to develop, and maintain, a program to implement these policies.

The workplace violence program must include measures and procedures to: (a) control the risks identified in the assessment; (b) call for immediate assistance when workplace violence occurs, or is likely or threatened; (c) report incidents or threats of workplace violence to the employer or supervisor; and (d) establish how the employer investigates and manages incidents, complaints or threats of workplace violence.

The workplace harassment program must include procedures for reporting, investigating and dealing with incidents of workplace harassment.

Employee Training

Employers are also required to provide employee training on the contents of the policy and program pertaining to workplace violence. The training should be conducted by a competent individual or team, and be relevant and individualized to the workers being trained.

Disclosure of Persons with a Violent History

Under Bill 168, employers and supervisors have an obligation to provide information, including personal information, to a worker about a person with "a history of violent behaviour" — if the worker could be expected to encounter that person in the course of his/her work and there is a risk of workplace violence likely to expose the worker to physical injury.

Bill 168 contains no guidance on who would be a person with a "history of violent behaviour" or what types of information should be disclosed. The person must have a history of "violent" behaviour (and not necessarily "harassing" behaviour) in order for the disclosure obligation to be triggered.

Also, the "violent" behaviour does not have to be behaviour for which the individual was criminally charged.

Domestic Violence

Bill 168 specifically addresses the issue of domestic violence in the workplace by requiring employers to "take every precaution reasonable in the circumstances" to protect workers from domestic violence that would likely cause physical injury to a worker in the workplace. This obligation arises only if the employer is either aware, or ought reasonably to be aware, of the situation. What constitutes "domestic violence" is not defined.

Work Refusals

Bill 168 clarifies that a worker may refuse to work where he/she has reason to believe that he/she is in danger of being a victim of workplace violence. Such refusal would trigger the normal work refusal process, i.e., the employer's investigation of the refusal, followed up by a Ministry of Labour inspector, if necessary.

The OHSA will continue to prohibit workers in certain public and broader public sector workplaces from refusing work where the unsafe condition (e.g., workplace violence) is "inherent in the work" or is a "normal condition of employment."

There is no corresponding right to refuse work where "harassment" is believed likely to endanger the health and safety of a worker.

Tips for Employers

With June 15, 2010 approaching, you should organize your affairs and review your existing policies and procedures. You need to be diligent and develop and implement a plan to ensure compliance.

For example, you should:

  • Create written workplace violence and workplace harassment policies that:
    • are brief and simple, and convey that all employees are responsible for maintaining a safe workplace;
    • provide clear definitions and/or examples of prohibited conduct, and cover incidents involving co-workers as well as incidents involving outside individuals;
    • send a strong message that workplace violence and harassment is not tolerated; and
    • provide a reporting and complaint procedure, as well as the steps to be taken to deal with or investigate any complaint.
  • Train employees on such policies.
  • Undertake risk assessments to determine the possibility or prevalence of workplace violence or workplace harassment and appropriately document the process. It may be appropriate for the assessment process to include: (a) individual interviews with a sample of workers; (b) a review of the physical workplace; (c) a comparison of similar workplaces; (d) a review of any previous incidents; and (e) the likelihood of interactions with the public that could lead to danger or confrontation.
  • Disclose incidents of workplace violence and workplace harassment with the joint health and safety committee and any risk assessments undertaken.
  • Provide an employee reporting mechanism that allow employees to report instances or risks of workplace violence and workplace harassment (e.g., in the policy).
  • Discipline employees for not following workplace violence and harassment policies or for committing workplace violence or workplace harassment.
  • Offer a confidential employee assistance program to allow employees subject to workplace violence or workplace harassment, or those with personal problems, to seek help.
  • Ensure proper security measures are in place at the workplace to protect workers from members of the public or customers.
  • Keep detailed records of any workplace violence or harassment, investigation or work refusal.

Footnotes

1 R.S.O. 1990, Ch. H.19

2 The concepts of "workplace violence" and "workplace harassment" have been broadly interpreted in other jurisdictions as well as under arbitral case law in Ontario. However, such case law has found that reasonable performance management and normal supervision and direction of employees will not be "harassment." It remains to be seen if this approach will be followed under the case law interpreting Bill 168.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions