Bill 168, "An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters," passed third and final reading in the Ontario Legislature on December 9, 2009. Bill 168 will soon receive Royal Assent and will then come into force six months later.

Bill 168 represents a significant change in how, and to what extent, workplace violence and harassment is regulated in Ontario. Bill 168 has been passed with few substantive changes to the original version of the Bill that was first introduced by the Ontario Government earlier this year (described in our e-Alert of April 23, 2009).

Under Bill 168, employers must devise workplace violence and harassment policies, develop programs to implement such policies, and engage in assessments to measure the risk of workplace violence. In addition, work refusal rights and the duties of employers and supervisors under OHSA have both been clarified to specifically apply to workplace violence.

The most significant change that has been made to the original Bill is the inclusion of a new, expanded definition of "workplace violence." Prior to third reading, only actual and attempted physical violence was included in the definition. Now, under the expanded definition, workplace violence includes not just actual and attempted physical violence but also threats of physical violence. Under Bill 168, "workplace violence" means:

  1. the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;
  2. an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; or
  3. 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.

With subsection (c) now included, "statements" or "behaviours" that could reasonably be interpreted as a threat of physical violence will now be covered under the "workplace violence" definition.

Under Bill 168, "workplace harassment" means "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" as defined in the Human Rights Code, the definition of "workplace harassment" under Bill 168 includes conduct that is not related to a prohibited ground of discrimination, e.g., sex, age, ethnicity, religion, etc.

Many of the other features of the original version of Bill 168 remain unchanged. These include obligations on employers to:

  • Assess the risks of workplace violence and advise the workplace joint health and safety committee or health and safety representative — or, if there is no committee or representative — advise the workers themselves of the results of the assessments.
  • Re-assess the risks of workplace violence as often as necessary to ensure the worker's protection.
  • Prepare and post written policies dealing with workplace violence and workplace harassment and review them at least annually.
  • Develop a comprehensive program to implement the workplace violence policy that includes measures to control risks of workplace violence, summon immediate assistance when workplace violence occurs, report incidents of workplace violence to the employer, and investigate and deal with incidents or complaints.
  • Develop a program to implement the workplace harassment policy that includes measures for workers to report incidents of harassment and that sets out how the employer will respond to any such incidents and complaints.
  • Provide information and instruction to workers on the contents of the workplace harassment and workplace violence policies and programs.
  • If an employer becomes aware, or ought reasonably to be aware, that domestic violence that is likely expose a worker to physical injury may occur in the workplace, the employer must take every precaution reasonable in the circumstances for the protection of the worker.

Bill 168 also provides that:

  • The statutory duties of employers and supervisors under OHSA apply, as appropriate, to workplace violence.
  • The duty on employers and supervisors to provide information to a worker includes an obligation to provide information relating to a risk of workplace violence from a person with a history of violent behaviour if: (i) the worker can be expected to encounter that person at work; and (ii) the risk of workplace violence is likely to expose the worker to physical injury.
  • Workers have the right to refuse work in situations where they are likely to be endangered by workplace violence.

Ontario Employers should now be reviewing and, as necessary, revising their workplace policies and procedures dealing with workplace violence and workplace harassment in order to ensure that they will be in compliance with their new legal obligations once Bill 168 comes into effect.

McCarthy Tétrault will be holding a breakfast seminar in January 2010 to provide our clients with more information on what Bill 168 means for their organizations and what steps they will need to take in order to meet their new obligations as employers. Electronic invitations will be sent out in the near future.

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.