Canada: Workplace Violence And Harassment Law: More Than Just Ontario´s Bill 168

Much has been written of late about Ontario's Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace. The Bill has now been given second reading in the Legislature, and is expected to become law sometime next year. In Ontario, the new law will place heavier obligations on employers to prevent and manage workplace violence and harassment, as compared to the more general obligations to prevent and manage such behaviour that already exist under Ontario's occupational health and safety legislation. An overview of Bill 168 can be found at

http://www.gowlings.com/resources/newsletterPDFs/ May%202009%20Newsflash.en.pdf

and http://www.gowlings.com/resources/enewsletters/ohslaw/Htmfiles/ ohslaw20091026.en.html.

It is not only Ontario employers who need to be concerned about preventing and managing violence and harassment in the workplace. Occupational health and safety laws in several jurisdictions, including the federal sphere (federal legislation governs transportation companies, banks, airlines, and other federal undertakings), British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia directly address the problem of workplace violence as a health and safety issue. In provinces where no distinct legal duty to prevent workplace violence is set out in their occupational health and safety statutes, the duty falls under the general duty clause, which requires the employer to take every precaution reasonable in the circumstances for the protection of a worker.

It is also important for employers in all jurisdictions to be aware of several other areas of the law that require action on their part to prevent and manage workplace violence and harassment.

Human Rights Law

Human rights legislation addresses workplace violence and harassment by protecting against discrimination-based violence and harassment in the workplace. In other words, where the violence or harassment in the workplace arises out of inappropriate conduct that is connected to race, sex, sexual orientation, citizenship, colour, religion, age, family status, or any other ground of discrimination prohibited by human rights legislation, the employer has a duty to prevent and manage such violence and harassment in accordance with such legislation. The broad similarity in human rights provisions across Canada makes it relatively easy for employers operating in more than one province to develop broad discrimination-based violence and harassment prevention policies that will be equally effective in all jurisdictions.

Human rights legislation provides a more victim-focused complaints process than occupational health and safety legislation. In most provinces, human rights legislation provides a fairly easy-to-access system for registering complaints with a government agency. In some provinces, the government agency will initiate an investigation into the complaint and determine whether a hearing should proceed, and in some other provinces, complainants have the right to a hearing, without the agency first conducting an investigation (such as in B.C. and Ontario, for example).

Regardless of the fact that an individual employee will be the alleged perpetrator of the discrimination-based violence and harassment, the employer is almost always named in the complaint. This is because of the employer's duty to take steps to protect an employee's right to be free from discrimination in the workplace.

Employment Standards Legislation

Employment standards legislation in the various provinces does not typically contain any provisions addressing workplace violence and harassment in the workplace. However, one exception is in the province of Quebec, where the Quebec Labour Standards Act prohibits "psychological" harassment.

Negligence and other Tort Remedies

The law of negligence places an additional duty on employers in all provinces to ensure a safe workplace for their employees. The law of negligence allows employees to bring civil lawsuits against both individual perpetrators and employers who fail to meet this duty to provide a safe workplace (except where such a negligence lawsuit is prevented because of the employee's entitlement to workers' compensation benefits). For an employee to be successful in a negligence claim against an employer, the employee must show that he or she has suffered a psychological or physical injury that resulted from an act or omission on the employer's part whereby the employer failed to meet a reasonable standard of care owed to the employee to protect the employee against a foreseeable risk in the circumstances.

Employers can take certain steps to protect themselves from negligence claims. A key step is to prepare a violence and harassment prevention program that is designed based on the circumstances of the workplace in question, and in particular based on the risk of violence within that particular work environment. It is critical for employers to consider injuries or traumas that are reasonably foreseeable given the workplace setup and past experience. This may provide the employer with some defence to claims that it failed to meet its duty of care to an employee in failing to prevent a foreseeable act of workplace violence, and may help to avoid the high costs of defending a lawsuit.

The high cost of other tort remedies (aside from negligence) was well demonstrated by the dramatic outcome in the case of Piresferreira v. Bell Mobility Inc. decided by the Ontario Superior Court at the end of 2008. In that case, an employee was abused by a manager who frequently yelled and swore at her, and berated her in front of other employees. The culminating incident occurred when the manager became frustrated with the employee and pushed her aside, and the employee (who was 60 years old) lost her balance and fell back against a filing cabinet. Soon thereafter, the employee was presented with a performance improvement plan prepared by the manager. The employee was diagnosed with post-traumatic stress disorder, and left her employment permanently. The court awarded the employee $45,000 in damages for assault, battery, intentional and negligent infliction of emotional distress, mental suffering and psycho-traumatic disability; $450,832 for loss of past and future income; and $5,123 for special damages. [Note: In some cases, an employee's eligibility to pursue workers' compensation benefits would provide an employer with the ability to have the civil suit barred.]

Workers' Compensation Law

Agencies responsible for administering the various compensation funds for worker injuries across the country are also recognizing the problem of workplace violence and are taking a strong stance against it. Although workers' compensation regimes can do little to directly prevent workplace violence from occurring, the provision of workplace benefits for those injured through workplace violence can act as a preventive mechanism.

For example, two recent policies instituted by the Ontario Workplace Safety and Insurance Board highlight the role of worker's compensation law in addressing workplace violence from the perspective of both employees and employers. One policy disentitles employees from receiving benefits if they are injured as a result of their participation in "a fight, horseplay or larking at work". Exceptions for innocent bystanders or employees who are provoked make clear the WSIB's focus on deterring perpetrators of violence. Similarly, the WSIB has implemented a policy extending benefits entitlement to employees suffering from traumatic mental stress as a result of some traumatic incidents in the workplace, including injury or threats of injury against the worker or co-workers. Employers must be aware of these emerging situations where workers' compensation benefits will be either restricted or extended, depending on the nature of an employee's involvement in incidents of workplace violence.

Final Thoughts

The human, legal, and economic costs of workplace violence and harassment can be profound for both the victim and the employer. While prevention is the best way to address violence and harassment at work, it is important for employers to be prepared to defuse difficult situations as soon as they arise in order to limit legal liability. Early intervention is crucial, and the quicker the response, the more effective it will be and the less costly the impact on an employer's organization.

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.