Canada Gazette, Part I, Volume 153, Number 17: Work Place Harassment and Violence Prevention Regulations

April 27, 2019

Statutory authority
Canada Labour Code

Sponsoring departments
Department of Employment and Social Development
Department of Transport
Department of Indian Affairs and Northern Development
Department of Natural Resources

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues

The widespread nature of harassment and violence in the workplace, including sexual harassment and sexual violence, is highlighted in the 2018 results of an online survey conducted by the Angus Reid Institute, where 52% of Canadian women say they have been subjected to sexual harassment in the workplace. ^{footnote 1} The results of the 2017 Government of Canada Public Service Employee Survey also underscores the pervasiveness of the issue, finding that 18% of respondents have been subjected to harassment or violence on the job in the past two years. ^{footnote 2}

Evidence also shows that harassment is severely under reported, with some studies estimating that up to 80% of occurrences go unreported to anyone. ^{footnote 3} The lack of reporting is due to the employees’ fear of retribution (including fear of losing their job security), lack of support from the employer to rectify the situation, and lack of knowledge of what behaviour constitutes harassment and violence.

The current legal framework under the Canada Labour Code (the Code) and its regulations to prevent harassment and violence in federally regulated workplaces is fragmented and not designed to adequately address occurrences of sexual harassment and sexual violence.

Background

Part II of the Code establishes the legislative framework for occupational health and safety for workplaces under federal jurisdiction, except for those covered by the Parliamentary Employment and Staff Relations Act (PESRA). It imposes an obligation on employers to take prescribed steps to prevent and protect against violence in the workplace. Specific employer obligations to prevent and protect against workplace violence are set out in Part XX of the Canada Occupational Health and Safety Regulations (COHSR).

Part III of the Code establishes minimum labour standards for federally regulated private sector workplaces and federal Crown corporations, but unlike Part II, it does not apply to the federal public service. Part III includes provisions establishing that employees are entitled to employment free of sexual harassment, and requiring employers to adopt sexual harassment policies and take reasonable efforts to ensure no employee is subject to sexual harassment. However, these provisions only address sexual harassment and do not address any other forms of harassment. Currently, there are no regulations to support the sexual harassment provisions in Part III of the Code.

Despite progress in raising employment and health and safety standards in Canada and the existing provisions that offer protection to employees under the Code, too many people continue to experience harassment and violence at work. In his 2015 mandate letter to the Minister of Employment, Workforce Development and Labour (Minister), the Prime Minister outlined the Government’s commitment to take action to ensure that federal workplaces are free from harassment and sexual violence.

In pursuit of this mandate, the Government of Canada consulted Canadians to find out how harassment and violence, including sexual harassment and sexual violence, is treated under the current legal framework for federally regulated workplaces, and how the framework can be strengthened. Consultations with employers, labour representatives, subject matter experts, advocacy groups and the public took place in 2016 and 2017 in the form of round-table meetings and teleconferences. An online survey was also conducted with the public. The top three sectors represented by survey respondents were educational services, the federal public service, and health care and social assistance. In addition, 89% of all respondents were women.

The results of these consultations are captured in Harassment and Sexual Violence in the Workplace Public Consultations — What We Heard Report, which highlights the inadequacies of the current federal approach to harassment and violence prevention in the following ways:

• The current regime does not appropriately address the range of inappropriate workplace behaviours;
• Canadians continue to report that they are on the receiving end of unwelcome sexual advances, requests for sexual favours, and sexually charged talk while on the job;
• Most people who have experienced sexual harassment at work have experienced it on multiple occasions;
• The majority of those who have experienced sexual harassment at work have never reported the behaviour to their employers, and many who do report it do not feel that they received a proper response or support;
• Those with disabilities and members of a visible minority group are more likely to experience harassment;
• Many workplaces have inadequate or weak policies on harassment and violence prevention, and many employees have never received training on existing policies; and
• Employees in parliamentary workplaces do not have the same occupational health and safety protections as other federally regulated workplaces.

To address the issues raised in these consultations, the Government of Canada introduced 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 to the House of Commons on November 7, 2017. Bill C-65 was passed by the Senate and received royal assent on October 25, 2018.

Bill C-65 addresses many of the inadequacies identified through the consultations and has resulted in changes to Part II of the Code as it relates to harassment and violence prevention. Specifically, Bill C-65

• Amends the purpose of Part II to explicitly indicate that it includes the prevention of harassment and violence and of physical and psychological injuries and illnesses;
• Defines harassment and violence as any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee;
• Extends employers’ obligations in respect of former employees in relation to an occurrence of harassment and violence in the workplace if the occurrence becomes known to the employer within three months after the day on which the former employee ceases to be employed by the employer;
• Requires employers to provide harassment and violence prevention training to everyone in the workplace;
• Restricts policy committees, workplace committees and health and safety representatives from participating in investigations related to an occurrence of harassment or violence in the workplace; and
• Extends all of the provisions under Part II of the Code to parliamentary workplaces covered by the PESRA.

Objective

To support the goals of Bill C-65, which includes authority to make regulations to prevent and respond to harassment and violence in the workplace and to support those affected, new stand-alone Regulations are proposed.

Creating a separate set of regulations would streamline the harassment and violence provisions, as they would apply to all federally regulated workplaces that fall under Part II of the Code, including those covered by the PESRA. They would also highlight the importance of harassment and violence prevention and make it easier for employers and employees to identify their rights and duties, as these rights and duties will be contained within one set of regulations separate from any other.

The proposed regulatory provisions to address harassment and violence as a continuum of behaviours have been developed based on the following goals:

1. Change the culture of harassment and violence in the workplace: Create a culture change in the workplace where civility and respect is the standard.
2. Increase empowerment of affected employees: While early resolution is emphasized as a first step, in the case where that step does not complete the resolution process, the employee who is the object of the occurrence (principal party) will have a voice to decide on the next step for resolution, either conciliation or an investigation.
3. Acknowledge a continuum of behaviours that qualify as harassment and violence: To support the concept of a continuum of inappropriate behaviours, all forms of harassment and violence, ranging from teasing and unwanted advances to assault, will be captured.
4. Emphasize the importance of prevention: Prevention is the most critical step to effectively reduce the number of occurrences of harassment and violence. Prevention also alleviates the financial burden on employers by reducing the need for outside conciliators or investigators to be involved in the resolution process.
5. Emphasize the importance of privacy and confidentiality: In an effort to encourage those who have witnessed harassment and violence in the workplace to come forward.
6. Establish predictable time frames for resolution: In order to support all parties and minimize negative impacts on the workplace.

Description

The proposed new stand-alone Work Place Harassment and Violence Prevention Regulations would apply to all federally regulated workplaces that fall under Part II of the Code. They would replace violence prevention provisions currently under Part XX of the COHSR. Portions of two other regulations that include violence prevention provisions would also be repealed.

The following table outlines the regulations that would have provisions repealed under this proposal.

Regulations	Section
Canada Occupational Health and Safety Regulations	Part XX — Violence Prevention in the Work Place
Maritime Occupational Health and Safety Regulations	Part 5 — Division 1 — section 90 Part 5 — Division 2 — Violence Prevention in the Work Place Part 21 — subsection 277(j)
On Board Trains Occupational Safety and Health Regulations	Part XV — Violence Prevention in the Work Place

Main elements of the new Regulations

In developing the proposed Regulations, consideration has been given to the existing COHSR, specifically Part XV (Hazardous Occurrence Investigation, Recording and Reporting), Part XIX (Hazard Prevention Program), and Part XX (Violence Prevention in the Work Place). This allowed the Labour Program to develop a proposed regulatory framework for stakeholders to react to during consultations and thus finalize this proposal.

The main elements of the new Regulations are outlined below. It should be noted that wherever there is a mention of the employer having to do something jointly, they must do it with the policy committee or, if there is no policy committee, with the workplace committee or health and safety representative.

Workplace harassment and violence prevention policy

Employers will be required to jointly develop and make available a prevention policy that outlines information on how their organization will address harassment and violence in their workplace.

The policy must also outline how an employer is to be informed of external dangers, such as family violence and stalking, that could result in harassment and violence in the workplace and the measures they may implement to minimize those dangers.

Workplace assessment

Employers will have to jointly conduct a workplace assessment that identifies risks of harassment and violence in the workplace and implement preventive measures to protect the workplace from these risks.

At least every three years, the workplace assessment will need to be reviewed and updated. A workplace assessment review must also be undertaken in certain situations where the resolution process cannot proceed: when the principal party wishes to remain anonymous, when the principal party chooses to stop proceeding with the resolution process prior to an investigation being started, or when the responding party is not an employee or the employer.

Emergency procedures

The employer will be required to jointly develop and implement emergency procedures to be followed in situations where an occurrence of harassment and violence poses an immediate danger to the health and safety of employees or when there is a threat of such an occurrence happening in the workplace.

Training

Employers will be required to jointly identify or develop harassment and violence training and ensure it is delivered to employees, employers and the designated recipient. The training will have to be delivered at least every three years and provide instruction on the elements of the prevention policy, as well as various other elements including crisis prevention, personal safety and de-escalation techniques, and how to respond appropriately to different types of occurrences.

Support measures

The proposed Regulations require employers to make available information respecting support services that employees may access should they be in need of them.

Resolution process

The proposed Regulations outline a resolution process that focuses on greater communication between the employer and the parties through monthly updates, reduced negative impacts on the workplace through prescribed timelines for completing the resolution process, and increased control on the part of the principal party regarding the subsequent steps for resolution should early resolution not complete the process.

The resolution process will require employers to respond to every notification of an occurrence of harassment and violence in their workplace. The resolution process includes multiple options for resolution: early resolution, conciliation and investigation. While early resolution and conciliation are more flexible, if an investigation is chosen to address the occurrence, employers will have to follow the requirements regarding the qualifications of an investigator, how they may be appointed, what types of reports the investigator must submit, and how the employer will handle those reports.

In addition, if an employer wishes to develop or identify a list of investigators, they must do so jointly.

Records and reports

To support enforcement of the proposed Regulations, employers will have to keep a number of records, including records of all notifications of harassment and violence in their workplace; records of the actions taken to address the notifications; records of the decisions they make in the event they are unable to agree on an issue that they must do jointly; and records of any delays to the timelines.

Internally, employers will be required to report aggregated data on occurrences resolved through early resolution and conciliation to the policy committee or, if there is no policy committee, to the workplace committee or health and safety representative twice per year. This internal reporting will ensure that the committees or representatives have all necessary information to conduct their responsibilities in monitoring the workplace; reviewing and updating the workplace assessment, prevention policy and training; and submitting annual reports.

In order to improve data collection on the prevalence and types of occurrences of harassment and violence in federal workplaces, employers must report an occurrence that results in the death of an employee within 24 hours and aggregated data on all occurrences annually to the Minister.

Regulatory development

Consultations

The Labour Program began consultations with key stakeholders in March of 2018. The consultation sessions were held in three phases, and the proposed regulatory framework was amended at the end of each phase in order to ensure that the final proposal would reflect the feedback received during consultations. Throughout this process, while there were some elements of the proposal that were revised based on the first two phases of completed consultations, the regulatory changes were generally well received by all interested parties. The increased visibility of the “#MeToo” movement prior to the regulatory consultations also played a role in increasing support from all stakeholders to eliminate sexual harassment and violence from the workplace. Details of each consultation phase are outlined below.

Phase 1 (March to May 2018): The Labour Program convened eight round tables across Canada with employers and unions that will be impacted by the new Regulations, as well as with subject matter experts and special interest groups. The all-day facilitated forums allowed the Labour Program to gauge initial reactions to the proposed regulatory framework. All participants were engaged in the sessions and provided very specific comments and feedback, which were used to refine the regulatory proposal. Phase 1 helped to clarify the qualifications of individuals undertaking workplace harassment and violence investigations; highlight the essential elements of an investigation report; make apparent that discipline is the employer’s domain and that the investigator should therefore not make recommendations regarding discipline; and inform the timelines for the resolution process.

Phase 2 (May to July 2018): Based on the comments and feedback received during the round tables in Phase 1, the proposed regulatory framework was revised. The Labour Program held six WebEx sessions and attended many forums at the request of stakeholders, such as the Federally Regulated Employers – Transportation and Communications (FETCO), the Royal Canadian Mounted Police (RCMP), the Public Service Alliance of Canada (PSAC) and the National Joint Council. Participants of these sessions, many of whom had attended one or more of the face-to-face consultations in Phase 1, were very appreciative that their feedback had been taken into consideration. The feedback in Phase 2 was very positive with regard to the main elements of the regulatory framework. Key input from Phase 2 included the recommendation to define the terms “mediators” and “mediation” in broader language so that elders and spiritual leaders could see themselves in the redefined terms and be considered as mediators; clarification of the timelines for the resolution process; and clarification of the concept of joint development.

Phase 3 (July–October 2018): Phase 3 consisted of online public consultations, and additional face-to-face meetings and teleconferences. Feedback received during phases 1 and 2 informed the Labour Program’s discussion paper, which provided a detailed description of the proposed regulatory framework. The discussion paper and associated survey questions were posted online for public comment for 74 days, with the comment period closing on October 5, 2018.

The public feedback was very positive from the 1 018 people who responded to the online survey. Specifically,

• 91% of respondents agreed that employers should be required to acknowledge receipt of a notification of harassment and violence that occurred in their workplace as soon as possible, but no later than five calendar days;
• 93% agreed that the employer be obligated to provide monthly updates on the status of the resolution process to the principal party and the responding party;
• 85% of respondents agreed that parties have two months or less to agree on an investigator or the Labour Program will identify one for them;
• 83% of respondents agreed that employers implement all appropriate recommendations in the investigator’s report as soon as possible but no later than six months;
• 87% of respondents agreed that physical support to the principal party should be made available, while 85% of respondents agreed that a list of local psychological support resources should be made available to all parties;
• 80% of respondents agreed that adjustments to the workplace environment to reduce the potential for continued harassment and violence (e.g. removing one of the parties from the physical workspace, moving offices of one of the parties, adjusting shift schedules) should be made available to all parties;
• the majority of respondents agreed that protections for those granted access to a workplace, such as job interviewees, external contractors, and volunteers, should be explicitly addressed in the employer’s harassment and violence prevention policy; and
• 78% of respondents indicated that an employer’s harassment and violence prevention policy should outline how that employer will provide support to an employee dealing with family violence, for example developing a safety plan with them.

In addition to completing the online survey, many employer and labour organizations submitted detailed written responses to the discussion paper. Important issues and comments raised that were reviewed and considered by the Labour Program during finalization of the proposed Regulations and supporting policy instruments included the new grants and contributions program, the outreach hub and guidance documents.

The following suggestions from stakeholders have been addressed in the proposed Regulations:

• Putting in place a fair resolution process for the principal and responding parties, while outlining conditions for which the employer must conduct a workplace assessment review instead of undergoing the resolution process, such as when the principal party wishes to remain anonymous;
• Greater clarification on when the resolution process is considered complete;
• Requiring early resolution as a first step to resolve a notification;
• Setting clear timelines for completing the resolution process;
• Clarifying that the employer has ultimate responsibility for decisions regarding which of an investigator’s recommendations in their report are appropriate for implementation;
• Requiring employers to state in the prevention policy the measures they may take to minimize the risk of external dangers entering the workplace, such as family violence and stalking;
• Clarifying what a workplace assessment must consist of when identifying harassment as a risk; and
• Not requiring prevention policies to address disciplinary action.

Some comments that were received addressed elements that are beyond the scope of the policy in the context of Bill C-65, and they therefore will not be addressed in this regulatory proposal:

• Providing for initial assessments of notifications to ensure that they qualify as harassment and violence;
• Ensuring union accountability for responsibilities in the proposed Regulations. For example, an employer’s ability to complain if the union is not adhering to the Code;
• Providing a dispute resolution mechanism for unions and employers;
• Providing an appeal process for an investigator’s report;
• Including a statute of limitations for complaints;
• Ensuring that workplace harassment and violence prevention policies outline appropriate behaviours for performance management;
• Establishing a standard rate or fee for service for investigators; and
• Outlining an extension of time for those acting as competent persons under Part XX of the COHSR for them to acquire the qualifications of an investigator under the new Regulations. ^{footnote 4}

Other suggestions that may be addressed in guidance materials include the following:

• How to handle multiple investigations being undertaken at the same time (e.g. internal complaint resolution process, Labour Program investigation, investigation under the resolution process in the proposed Regulations, and Canadian Human Rights Commission investigation); and
• How to handle notifications given in bad faith.

The face-to-face meetings and teleconferences during Phase 3 were held with FETCO, the PSAC, federal public service organizations, and the National Joint Council. A half-day facilitated session took place on September 28, 2018, with the Union Management Consultation Committee (UMCC), including management representatives from Parliament Hill’s Chief Human Resource Officer’s management team, as well as the senior union representative of non-political staff on Parliament Hill.

A variety of stakeholders were present at the in-person and/or via WebEx consultation sessions conducted by the Labour Program since March 2018.

To gain a greater understanding of provincial and territorial work being undertaken on harassment and violence prevention, the Labour Program consulted, often regularly, with British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec and New Brunswick.

Many federally regulated employers, employer groups and employee representatives in the following sectors participated in the sessions: band offices; rail, air, road and marine transportation; ports; banks; telecommunications; nuclear and oil and gas. In addition, almost every federal department, agency and crown corporation attended a minimum of one consultation session.

Subject matter experts on human resources, academia, occupational health and safety, and human rights, as well as advocacy groups for Indigenous peoples, the lesbian, gay, bisexual, transgender, queer and two-spirit (LGBTQ2) community, visible minorities, women, and persons with disabilities were also integral in the policy development.

The following parties regulated under the PESRA attended the in-person consultation sessions:

• House of Commons Administration
• Library of Parliament
• Office of the Conflict of Interest and Ethics Commissioner
• Office of the Parliamentary Budget Officer
• Office of the Senate Ethics Officer
• Parliamentary Protective Service
• Public Service Alliance of Canada
• Senate Administration
• Union of National Employees
• Unifor

The consultation process undertaken for developing the new Regulations was extensive and far-reaching. These consultations, thanks to the participation of many committed stakeholders and Canadians at large, refined all aspects of the proposed Regulations, from overarching elements to minute details.

Indigenous consultation and duty to consult

The proposed Regulations would not change which workplaces are under federal jurisdiction and subject to labour provisions in the Code. Indigenous bands and band councils are generally subject to the Code, including those with modern treaties or self-government status.

The Code continues to apply to modern treaty areas as this area of jurisdiction has been “carved out” of areas of jurisdiction in treaties, meaning that it is not an area of jurisdiction for which a modern treaty holder would create their own legislation. Modern treaty holders would therefore be applying the Code to applicable activities in their territory.

Indigenous groups participated in the round-table discussions and WebEx sessions, and provided feedback through the online survey. Throughout these consultations, the Labour Program heard positive support from Indigenous peoples of the proposed changes.

With respect to harassment and violence, some Indigenous participants indicated that the term “mediator” does not resonate with them. For example, they were concerned that the proposed regulatory requirement to use a “mediator” would not allow for the use of an Elder in dispute resolution processes. To address this concern, the proposed Regulations use the term conciliation.

Much of the feedback received raised the need for capacity building within band and tribal councils in regard to all employer obligations laid out in Part II of the Code. The Labour Program also heard about the issue of lateral violence ^{footnote 5} and the power imbalance between Chiefs and employees. These are barriers that will need to be addressed in order for the proposed Regulations to achieve the intended reduction in occurrences of harassment and violence in the workplace. The Labour Program is working with the G’minoomaadozimin initiative to provide grants and contributions funding for a project that would help mitigate this issue. The project will focus on developing a toolkit and workshop to implement Bill C-65 and the proposed Regulations. The project will begin in Ontario but will scale up into British Columbia, Saskatchewan and Manitoba.

Instrument choice

Part II of the Code and its regulations create a framework for federally regulated employers to ensure the health and safety of their employees, including required measures to prevent and protect against violence in the workplace. The current regulatory framework to address violence is not in line with the new legislative changes introduced by Bill C-65, nor with best practices gleaned from international jurisdictions and subject matter experts. Therefore, regulatory amendments must be made to achieve the goal of consolidating provisions for all federally regulated employers under one regulatory instrument, as well as to ensure that the continuum of harassment and violence behaviours is covered.

In addition to these changes to the legal framework, non-regulatory measures to change workplace culture in this area include a new grants and contributions program to fund joint employer and labour projects that assist federally regulated workplaces in implementing the new regime and increase knowledge and data on harassment and violence in the workplace; an awareness campaign; the establishment of a harassment and violence prevention hub (the Hub) to support employers and employees in navigating their rights and obligations under the legal framework; improved data collection; and the development of a roster of investigators. These initiatives are discussed further below.

Regulatory analysis

Benefits and costs

Methodology and data sources

Harassment data and estimates in this document are based on the 2015 Federal Jurisdiction Workplace Survey (FJWS).

Although the Federal Public Service Survey (FPSS) was considered as a data source for this study, as it comprises semi-annual and, more recently, annual surveys related to employment, including questions related to harassment, the FPSS was not retained for the purpose of this cost-benefit analysis, due to consistency and scope issues.

Unless stated otherwise, all cost estimates, including those for small businesses, are expressed as present values (PV), in 2018 dollars, based on a 7% discount rate, and forecasted over a 10-year period (2019–2028).

The proposed Regulations will affect approximately 18 000 employers and 1 200 000 employees who are subject to Part II of the Code. Total costs are estimated at approximately $0.84 billion.

Anticipated monetized benefits

Although this regulatory proposal is expected to yield tangible economic benefits to the federally regulated sector and the broader Canadian economy, it was found that the scientific literature and the data currently available are not yet sufficient to enable a full and robust quantitative estimation of such benefits, since the outcomes of harassment and violence in the workplace still constitute an emerging field of research.

The reporting requirements prescribed in the proposed Regulations, as well as other initiatives that will be funded by the Labour Program, such as future iterations of the FJWS, will go a long way towards addressing the data limitations and research gaps inherent to workplace harassment and violence issues.

Anticipated benefits — Qualitative summary

Economic benefits expected from the mitigation of harassment and violence in the workplace may be wide ranging and include a reduction in absenteeism, job burnout, disability payments, lost work time and litigation costs.

Perhaps more significantly, a lower prevalence of workplace harassment and violence holds the potential to foster a collaborative work environment based on trust and accountability as well as a psychologically healthier and more motivated workforce. These positive outcomes are expected to reflect favourably on labour productivity. One study ^{footnote 6} found that workplace harassment had a statistically significant negative impact on workplace productivity.

There is a growing perception that training employees on workplace harassment and violence is most effective when it is part of a broader set of organizational initiatives that intend to shift attitudes towards harassment and violence at work. Nevertheless, another study, based on data from the United States Merit Systems Protection Board (MSPB), found that such training alone could result in a positive shift in attitudes towards unwanted sexual behaviours in employees and managers. ^{footnote 7}

Regulatory proposal “break-even” point

In spite of the limitations preventing a complete characterization of the economic benefits anticipated from the proposed Regulations, an attempt was made to estimate a “break-even” point, where a decline in the prevalence of workplace harassment and violence offsets the costs of this regulatory initiative. This was done under the following assumptions:

1. A regression analysis based on the mathematical formulation of the above-mentioned first study found that a 1% decline in occurrences of workplace harassment and violence would increase the Canadian Gross Domestic Product (GDP) [i.e. the labour productivity] by 5 cents for every hour worked.
2. Statistics Canada’s data on hours worked ^{footnote 8} suggest that the average number of hours worked by federally regulated employees will average 1.3 billion for the 2019–2028 period considered in this impact assessment.

It is consequently estimated that a reduction of about 1.8% in the prevalence of workplace harassment and violence would entail a labour productivity increase of approximately 9 cents for every hour worked, which is expected to yield a GDP growth of about $840 million (discounted over 10 years at 7%), thereby offsetting the costs expected from this regulatory initiative.

In fact, according to experts in academic institutions surveyed by the Labour Program, a 1.8% anticipated reduction in the prevalence of sexual harassment likely underestimates the true magnitude of the decline that will result from the proposed Regulations by a considerable margin.

Anticipated costs

Costs associated with the proposed Regulations would be borne by employers, most of which (83%) are due to new requirements for employee training, followed by enhanced roles of policy committees, workplace committees and health and safety representatives (12%). The rest relates to requirements on the employer to develop a harassment and violence prevention policy, and follow the workplace resolution process, measures the employer may take to protect employees from external dangers, such as family violence and stalking, that could enter the workplace, as well as record keeping and reporting.

Employee training

Currently, Part XX of the COHSR requires that employees who are exposed or are at risk of being exposed to workplace violence be trained on this subject and its prevention. Based on the FJWS, about 38% of employees have already received this type of training. Therefore, approximately 758 000 employees would need to take this type of training once the proposed Regulations are implemented.

The proposed Regulations require that the training be provided to employers and employees at least every three years. Upon a scan of presently available training in this domain, it is found that the duration of training varies between two hours (online training), four hours (online or in-class training), and one day (in-class training), and the costs (per employee) averaged, across training providers sampled, approximately $56, $132, and $172, respectively. It is then assumed that medium and large employers (with at least 100 employees) would opt for the one-day training, while small employers (with fewer than 100 employees) would take the four-hour training. Such training would be provided to all employers and employees in the first six months from the day the proposed Regulations are implemented (2019), as well as to new employees within their first three months of work. After that, all employers and employees would be required to renew their training at least every three years, which is assumed to be half the time in duration of the first-time training.

In addition, employers would also assume the opportunity cost of training, which is the employees’ salaries that have to be paid while they are on training. Based on the FJWS, the average wage rate per hour in the federally regulated workplace in 2018 was $36.93.

The total training costs to employers are estimated at $696 million, or an annualized cost of $99 million.

Enhanced roles of policy committees, workplace committees, and health and safety representatives

The proposed Regulations would impose enhanced duties on the policy committees, workplace committees, and health and safety representatives related to harassment and violence prevention in the workplace. These enhanced roles would include, but are not limited to,

• co-developing with the employer the harassment and violence prevention policy;
• co-developing and/or co-identifying and co-reviewing with the employer training materials;
• co-developing or co-identifying, with the employer, a list of investigators, should employers wish to use such a list; and
• jointly determining, with the employer, which of the investigator’s recommendations are appropriate to implement.

It is assumed that developing a prevention policy and training material would be a one-time duty, which takes the policy committees, workplace committees, or health and safety representatives between one and eight hours to finalize, while reviewing and implementing them would be an ongoing task that requires approximately four hours to complete. With the number of policy and workplace committee members and health and safety representatives estimated at 51 400, and their average wage rate per hour at $36.93, the total costs to employers due to the policy committees, workplace committees, and health and safety representatives’ enhanced roles are expected to be approximately $99 million, or an annualized cost of $14 million.

Other costs

The proposed Regulations would also require that employers develop a harassment and violence prevention policy, follow the workplace resolution process, and make available information respecting support services available to employees within their geographical area. These costs to employers are relatively small compared to costs related to training and the enhanced roles of policy committees, workplace committees, and health and safety representatives. It is estimated that these costs are approximately $41.9 million in total, or an annualized cost of $6.5 million.

The development of a harassment and violence prevention policy will affect all employers and is estimated to take, on average, 12 hours for small employers (fewer than 100 employees) and 24 hours for larger employers, with a review taking approximately 2.5 hours for small employers and 5 hours for larger employers at least once every 3 years. Total costs over 10 years (PV) are estimated at $7.8 million, and approximately $1.1 million on an annualized basis.

The development of harassment and violence workplace assessments is estimated to take approximately 26 hours for small employers (fewer than 100 employees) and 49 hours for larger employers, with a review taking approximately 5 hours for small employers and 10 hours for larger employers, at least once every 3 years. Total costs over 10 years are estimated at about $12.6 million, and approximately $1.8 million on an annualized basis.

The workplace resolution process includes attempting early resolution, and if this does not complete the process, the involvement of a conciliator to facilitate discussion and/or an investigator to conduct an investigation. It is estimated that this requirement will cost employers approximately $15.5 million over 10 years, or annualized costs of approximately $2.2 million.

The proposed Regulations require that employers follow the resolution process for every notification of an occurrence of harassment and violence in the workplace. This includes the avenues for resolution available to the principal party, and working with the policy committee, workplace committee, or health and safety representative to determine which of the investigator’s recommendations are appropriate for implementation. Total costs over 10 years are estimated at approximately $5 million, and $713,000 on an annualized basis.

In addition, employers would be required to record employer decisions on matters that are required to be done jointly, every notification of harassment and violence and action taken in response to it, and reasons for delays to the timelines. Employers would also be required to report aggregated data on occurrences resolved through early resolution and conciliation to the policy committee, workplace committee or health and safety representative twice per year, report occurrences that result in the death of an employee as they occur and aggregate data on all occurrences of harassment and violence in the workplace annually to the Minister. The anticipated PV of the resulting administrative burden costs is approximately $901,105 over 10 years.

In total, the proposed Regulations would result in an additional cost of $837 million for employers, or an annualized cost of $119 million.

Costing statement

			Base Year	Other Relevant Years	Total (Present Value)	Annualized Average
A. Quantified impacts (present value [2018] in millions, Can$, 2018 price level, 7% discount rate, 2019–2028)	Benefits	Medium/large employers	2019	2028	N/A	N/A
		Small employers	2019	2028	N/A	N/A
		All employers	2019	2028	N/A	N/A
	Costs	Medium/large Employers	2019	2028	$723	$103
		Small employers	2019	2028	$113	$16
		All employers	2019	2028	$837	$119
Net benefits					N/A	N/A
B. Quantified impacts in non-$ (e.g. from a risk assessment)	Positive impacts	By stakeholder			N/A
	Negative impacts	By stakeholder			N/A

Small business lens

The small business lens applies as there are impacts on small businesses associated with the proposed Regulations. A small business is any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues. ^{footnote 9}

Small federally regulated businesses are not expected to be unduly or disproportionally affected by the proposed Regulations. While larger employers may enjoy economies of scale in arranging one-day training to employees on workplace harassment and violence prevention, it is anticipated that many small employers will opt for four-hour training to employees. The market for this type of training shows that third party providers typically offer training at one day, four hours and two hours in duration. It is anticipated that smaller employers will opt for the four-hour variant due to cost constraints.

In addition, costs to small businesses are expected to be lower per firm than for larger businesses (100 or more employees), for both the development of the workplace harassment and violence prevention policy and workplace assessment. It is estimated that the cost to develop the harassment and violence prevention policy and workplace assessment, per small business, will be approximately $443 and $946 respectively. For larger businesses, the costs, per firm, to develop the policy is estimated at approximately $886 and $1,795 for the workplace assessment.

The total costs to be assumed by small businesses (expressed in $2018 and 2018 PV) are estimated at approximately $113 million, which includes administrative burden costs of approximately $44,000. The annualized costs to small employers, across the federal jurisdiction, are approximately $16.1 million. Annualized costs per small business are estimated at approximately $921, and for the period 2019 to 2028, total costs per small business are estimated at approximately $6,500.

Small Business Lens Summary

Number of small businesses impacted	17 534
Number of years	10
Base year for costing	2019

Compliance Costs	Annualized Value ($)	Present Value
TOTAL	$16,145,598	$113,399,924

Administrative Costs	Annualized Value ($)	Present Value
TOTAL	$6,328	$44,448
TOTAL COST (all impacted small businesses)	$16,151,926	$113,444,372
Cost per impacted small business	$921	$6,470

One-for-one rule

The one-for-one rule applies since there is an incremental increase in administrative burden on business, and a new regulatory title is being introduced.

The proposed Regulations would impose requirements on employers to record every notification of an occurrence of workplace harassment and violence, actions taken to address them, decisions taken by the employer where a matter is to be done jointly, and any delays to the timelines. In addition, employers must report aggregated data on occurrences resolved through early resolution and conciliation to the policy committee, workplace committee or health and safety representative twice per year, as well as report occurrences that result in the death of an employee as they occur and aggregated data on all occurrences annually to the Minister.

The Labour Program assumed that an administrative clerk would spend 30 minutes on recording and retaining each occurrence, and another 10 minutes to complete the report. It is also assumed that employers would spend 2 minutes each year to review each stored record. Additionally 30 minutes would be required to create and file separate fatality reports with the Minister.

An estimated 27% of federally regulated businesses would experience a reportable occurrence of workplace harassment and violence every year, which represents approximately 5 100 employers. The hourly cost of labour related to occupational categories involved in managing and reporting these occurrences would range from $26 to $29 in 2012 dollars.

Using the TBS Regulatory Cost Calculator and the methodology developed in the Red Tape Reduction Regulations, ^{footnote 10} it is estimated the total administrative burden costs over 10 years will be $66,294 (2012 annualized dollars), which entails an annualized administrative cost per business of $4.

Regulatory cooperation and alignment

The Labour Program met with the provincial and territorial jurisdictions on a regular basis to align the Work Place Harassment and Violence Prevention Regulations with similar regulations of other regulatory jurisdictions. The Labour Program also participated in Canadian Association of Administrators of Labour Legislation Occupational Health and Safety (CAALL-OSH) meetings with all the jurisdictions in Canada where discussions were held on the intent of Bill C-65 and more recently the proposed Work Place Harassment and Violence Prevention Regulations and how they align with similar regulations in the other jurisdictions.

Overall, the proposed Regulations align with the other jurisdictions in terms of employer requirements to develop a harassment and violence prevention policy, conduct workplace assessments, develop mandatory harassment and violence training, make available information about support services to employees, and report on occurrences of harassment and violence on an annual basis. The requirement for a harassment and violence prevention policy, workplace assessments, and the development of training also aligns with the Proposed Convention Concerning the Elimination of Violence and Harassment in the World of Work (proposed Convention) of the International Labour Organization (ILO), which will be finalized and prepared into a fourth report by the International Labour Office for the consideration of the International Labour Conference (ILC) at its 108th Session in June 2019. Articles 9(a), (c) and (d) of the proposed Convention call for each member state to adopt regulations that require employers to implement a workplace policy on harassment and violence, identify hazards and assess the risks of harassment and violence, and provide concerned workers with information and training on the identified harassment and violence hazards and risks.

The primary area in the proposed Regulations where there is a gap in alignment with the other jurisdictions concerns defining harassment and violence on a full continuum of inappropriate behaviours. However, treating harassment and violence on a continuum aligns with Article 1(a) of the proposed Convention, where harassment and violence are similarly defined as a range of unacceptable behaviours and practices.

Another major difference in the proposed Regulations is that they will require employers to address measures they may take to protect the workplace from external dangers, such as family violence, in their workplace harassment and violence prevention policy. However, this change does align with regulatory changes in a number of provinces, including New Brunswick, Ontario and Alberta, that have recently introduced domestic violence in their harassment and violence legislation. This also aligns with the ILO proposed Convention, where the preamble notes that domestic violence can affect employment, productivity and health and safety, and that the world of work, its institutions and governments can help, as part of other national measures, to recognize, respond to and address domestic violence. Article 10(f) of the proposed Convention, also calls on member states to take the appropriate measures to recognize the effects of domestic violence on the world of work and take measures to address them.

Further, Bill C-65 ensures that employer obligations apply in respect of former employees in relation to occurrences of harassment and violence if the occurrence becomes known to the employer within three months after the day on which the employee ceases to be employed. However, British Columbia, Quebec and Saskatchewan have also moved in this direction and currently allow former employees to bring forward a complaint.

Strategic environmental assessment

In accordance with the guidance on conducting a strategic environmental assessment (SEA), a preliminary scan was completed and revealed that this proposal has no environmental implications; therefore, no further assessment is required.

Gender-based analysis plus

Issue identification

A gender-based analysis plus (GBA+) assessment was conducted as part of the development of Bill C-65 and these proposed Regulations.

Harassment and violence tend to affect different groups differently. Below, some of those different impacts are discussed for women, men, sexual minorities (LGBTQ2), Indigenous peoples, persons with disabilities, and workers in Canadian territories.

Women

In the Angus Reid Institute 2014 survey, Canadian women are more than three times as likely as men to say they have experienced sexual harassment at work — 43% versus 12%. ^{footnote 11}

Statistics Canada’s 2014 General Social Survey (GSS) recorded a higher rate of violent victimization (including sexual assault, robbery, and physical assault) for women than for men, 85 occurrences per 1 000 women compared with 67 per 1 000 men. This finding is primarily based on sexual assault, a crime in which the majority of victims are women. ^{footnote 12}

Workplace bullying literature suggests that women are bullied by both men and women, while men are more likely to be bullied by other men. Evidence also points to women in senior management roles experiencing higher levels of bullying from supervisors, colleagues and subordinates compared to their male peers. ^{footnote 13}

Men

Compared to women, men are more at risk of being physically assaulted. ^{footnote 14} In addition, evidence suggests that male victims of sexual assault are less likely than female victims to report the occurrence, due to a number of reasons including shame, guilt and fear of not being believed, as well as prejudices surrounding male sexuality. ^{footnote 15}

Further, Statistics Canada’s 2014 GSS suggests that men are much less likely than women to use victim services. While 19% of female victims of violent crime contacted at least one such source of support, most often a psychologist or social worker, only 7% of male victims did so. ^{footnote 16}

Sexual minorities (LGBTQ2)

In the 2014 GSS, people who self-identified as homosexual or bisexual recorded the highest rate of violent victimization (including sexual assault, robbery, and physical assault), at 207 occurrences per 1 000 population, compared to 69 per 1 000 for heterosexuals. ^{footnote 17}

Statistics based on the 2010 National Intimate Partner and Sexual Violence Survey from the United States also suggest an elevated risk of harassment and sexual violence for sexual minorities:

• 46% of bisexual women have been raped in their lifetime, compared to 17% of heterosexual women and 13% of lesbian women.
• 37% of bisexual women have experienced stalking victimization at some point during their lifetime in which they felt very fearful or believed that they or someone close to them would be harmed or killed. This is more than double the rate among heterosexual women (16%).
• 40% of gay men and 47% of bisexual men, compared to 21% of heterosexual men, have experienced sexual violence other than rape in their lifetime. ^{footnote 18}

Indigenous peoples

Statistics Canada research using the 2014 GSS shows that the overall rate of violent victimization among the Indigenous population was more than double that of the non-Indigenous population (163 occurrences per 1 000 people versus 74 occurrences per 1 000 people). Regardless of the type of violent offence (sexual assault, robbery, or physical assault), rates of victimization were almost always higher for the Indigenous than for the non-Indigenous population. ^{footnote 19}

Persons with disabilities

Research based on the 2004 GSS shows that the rate of violent victimization (including sexual assault, robbery, and physical assault) for persons with activity limitations (367 per 1 000 people) was more than double the rate for persons without limitations (150 per 1 000 people). Moreover, persons with activity limitations were more likely to experience multiple victimization, with 46% of those who were victims of a violent crime being victims more than once during the 12 months preceding the survey. This is in comparison to 35% for persons without limitations. ^{footnote 20}

Research based on the 2014 GSS suggests that the higher violent victimization rate experienced by persons with disabilities was specifically the result of violent victimization experienced by those with a mental or learning disability. About 1 in 10 Canadians reported a mental health-related disability, a developmental or learning disability, or self-assessed their mental health as poor or fair. The rate of violent victimization among these individuals was more than four times that of individuals who self-assessed their mental health as excellent or very good, 230 occurrences per 1 000 population compared to 53. ^{footnote 21}

Workers in Canadian territories

Residents of the territories reported about 15 000 violent occurrences in the 2014 GSS, of which about 20% occurred at the victim’s place of work. This translated to a rate of 170 violent occurrences per 1 000 population for the territories, which was more than twice the rate in the provinces. ^{footnote 22}

Consequences of workplace violence

It is widely recognized that workplace violence can increase workers’ stress and anxiety, harm workers’ health, and reduce employee engagement and productivity. Further, non-physical acts of violence, such as verbal and psychological violence, can lead to consequences at least as serious as physical violence. ^{footnote 23} In the United States, surveys suggest that 37% of workers have been bullied (either currently or previously) at work and 45% of the bullying targets reported stress levels that affected their health. ^{footnote 24} A vast amount of literature documents the negative effects of workplace sexual harassment for targets and organizations, for example, reduced job satisfaction. ^{footnote 25}

There are also negative consequences for perpetrators of workplace violence. Studies show that being a target of bullying strongly predicts involvement in bullying others. In a British study focusing on the perspectives of alleged bullying perpetrators, all participants reported severe mental health problems, which they identified as being the result of the allegations made against them. Twenty-five percent of participants were either dismissed or reported that they were forced to resign from their positions as a result of bullying allegations. ^{footnote 26}

Research also suggests that there is a significant negative impact of workplace violence on bystanders. Co-workers witnessing the negative event may fear a similar fate and experience increased stress, decreased morale, and undermined productivity. Bystanders may withdraw due to these negative effects, which further increases a target’s vulnerability. An Australian study shows that up to 20% of witnesses of bullying decided to leave their workplace as a result of their experiences. ^{footnote 27}

Anticipated impact of the proposed Regulations

By creating a single streamlined regime that would encompass the full continuum of actions from teasing and bullying to physical violence, the legislation and proposed regulatory amendments will increase protections for workers and eliminate the current duplication regarding prevention of workplace harassment and violence. The continuum demonstrates that while harassment is usually non-physical, it can quickly escalate to acts of physical violence. It is expected that the new regime will reduce the exposure of workers under federal jurisdiction to harassment and violence in the workplace.

It is therefore reasonable to suppose (probabilistically, as there is never certainty) that those individuals and groups who currently experience disproportionate amounts of harassment and violence will benefit disproportionately. For example, all federal jurisdiction employees in sex-segregated workplaces or teams (i.e. male-dominated sectors such as police, military or prisons) would benefit from this initiative, as they are at increased risk of being the victim of workplace harassment and violence. In addition, the proposed initiative is expected to have greater benefits for employees in the federal jurisdiction in occupations where they tend to

• Work with the public (e.g. workers in public transportation);
• Work with valuables and handle cash (e.g. workers in banks and shops);
• Work in an environment where violence is “accepted” as part of the job (e.g. call centres, security and public law enforcement);
• Work with people with special vulnerability (e.g. precarious work situations); and
• Work alone (e.g. workers in small businesses).

Further, the proposed initiative is expected to have greater benefits for women as they form a significant percentage of workers in higher risk occupations (e.g. banking clerks), and studies have demonstrated that they are three times as likely as men to have experienced sexual harassment at work. ^{footnote 28} Studies have also shown that women in senior management positions have greater exposure to harassment and violence than their male counterparts.

While men are overrepresented among workplace violence perpetrators, male workers under federal jurisdiction are also expected to benefit from the proposed initiative. First, perpetrators experience negative outcomes as a result of their violent act, as studies show that being a target of bullying strongly predicts involvement in bullying others. Second, compared to women, men are more at risk for being physically assaulted. Third, working in male-dominated sectors, such as the military or the security sector, heightens the risk of experiencing violence. Moreover, male victims are less likely than female victims to report the occurrence and to use victim services.

Research has also identified several demographic groups with elevated risks for violent victimization, including sexual minorities (LGBTQ2), Indigenous peoples, persons with disabilities (especially those with mental or learning disabilities), and workers living in Canadian territories. It is expected that these groups will benefit disproportionately from the proposed initiative.

In addition, greater exposure to various forms of workplace violence has been found to be associated with different categories of non-standard employment, particularly temporary or fixed-term employment. Furthermore, several studies have found that temporary employees are at increased risk of exposure to sexual harassment.

Finally, while the overarching policy intent is to reduce and eliminate harassment and violence, particular initiatives will attempt to take into consideration GBA+ concerns. For example, the first rounds of grants and contributions funding will be focused on those groups who experience harassment and violence disproportionately (e.g. Indigenous peoples). In addition, the training will be workplace-specific and the communications plans developed by the Labour Program will not be uniform, but targeted to diverse groups with different perspectives, to ensure initiatives have appropriate relevance to different audiences and workplaces. Labour Program investigators and Hub call receivers have been and will be trained to be able to sensitively interact with disadvantaged populations to accommodate a variety of needs or communication styles. The proposed Regulations also require that an investigator not be the responding party nor directly report to the responding party, if they are internal to the organization, as well as be agreed upon by both parties and the employer.

Monitoring of the proposed Regulations

While there is data internal to the Labour Program on the number of occurrences of violence in federally regulated workplaces, there is no reliable data on the number of occurrences of harassment in federal workplaces. Legislation and proposed regulatory amendments requiring reporting will help to close this gap. The increased data collected from surveys or Hub contacts will be assessed to ascertain as much useful demographic and GBA+ data as possible to better understand GBA+ impacts as the various aforementioned initiatives are implemented.

Implementation, compliance and enforcement, and service standards

It is expected that the proposed Regulations will come into force on the same day as the provisions of Bill C-65. This date will be set by order in council.

The successful implementation of the new harassment and violence prevention regime consists of six key elements:

• 1. Awareness campaigns: Creating awareness campaigns to challenge misconceptions and stereotypes related to harassment and violence in the workplace, including awareness of existing legal provisions that have reprisal protection for employees who file complaints. One of the major factors underlying the failure to comply with legislated obligations in small and medium-sized businesses is a lack of awareness and resources. Generally, the campaigns would bring awareness to workplace parties of their rights and obligations through initiatives such as ministerial announcements and speeches, social media, infographics, web content, publications and outreach.
• 2. Enforcement: The Labour Program investigates complaints regarding non-compliance with the Code, not actual occurrences of harassment and violence. At any point in the resolution process, a party may make a complaint that the employer is or has been non-compliant with the Code.
• It is complaints of non-compliance that lead to Labour Program investigations. It is anticipated that the number of investigations will initially increase as employees become more comfortable coming forward and then eventually decrease because cultural change takes place in the workplace and there are fewer complaints of non-compliance with the Code. To conduct the estimated initial increase of investigations into non-compliance with the Code and undertake enforcement- related activities, such as the enforcement of Part II of the Code in parliamentary workplaces, the Labour Program is hiring and training additional health and safety officers (HSOs).
• If the Labour Program observes particular employers or industries with a higher number of complaints or complaints of a particular nature, then the Labour Program will conduct reactive inspections of those workplaces. While investigations pertain to a specific complaint, an inspection is an exploration of how a particular workplace may not be compliant with the Code based on trends or riskiness of the sector.
• 3. Development of materials and tools, and roster of investigators: Developing materials such as guidelines for the implementation of the new regime, links to provincial/territorial support services, and toolkits (e.g. videos, sample policies, posters) will support employers and employees in implementing the new regime and provide them with available resources. Additionally, the Labour Program will coordinate a labour and employer co-developed roster of investigators for employers to access in order to facilitate the resolution process for the various parties involved in a complaint.
• 4. Harassment and violence prevention hub: Establishing the Hub to provide support to employers and employees on the topic of violence and harassment in the workplace. The Hub includes a 1-800 number linking employers and employees with Labour Program experts who can help them navigate the harassment and violence provisions under the Code, help the caller determine whether the occurrence meets the definition of harassment and violence in the workplace, direct them to support services in their respective regions, and, if they are not federally regulated, direct them to the appropriate jurisdiction.
• The Hub will also make available educational tools and trained individuals from the Labour Program who can help employers meet their legal obligations. For processing of engagements, service standards are 24 hours.
• 5. Annual reporting and program review: Presently, federally regulated employers are obligated to submit annual reports to the Minister on all hazardous occurrences, including violence, within the workplace. However, there is no explicit obligation to report on occurrences of harassment, including sexual harassment. Consequently, there is insufficient data on the spectrum of workplace harassment and violence. To address this data gap, Bill C-65 requires employers to report all occurrences of harassment and violence to the Minister, and that the Minister prepare and publish an annual report related to harassment and violence within federally regulated workplaces.
• In addition to the requirement to prepare and publish an annual report, the Minister is required to conduct every five years a review of the provisions of Part II of the Code related to harassment and violence. To support this review, the Labour Program will be collaborating with Statistics Canada to undertake a biennial survey of federally regulated workers. The survey will include specific questions related to harassment and violence.
• 6. Grants and contributions: To support the implementation of the new legislative and regulatory provisions associated with Bill C-65 and achieve the culture shift that will be required to reduce occurrences of harassment and violence, the Labour Program is putting in place a new grants and contributions program that will provide funding for management and union parties to co-develop sector-specific training and resources. The intended results of the program are the co-development of tools and resources related to harassment and violence prevention and more collaborative workplaces. The ultimate outcome is federally regulated workplaces that are free of harassment and violence.

Evaluation and review of the proposed Regulations

At least every five years, a review of the provisions of Part II of the Code related to harassment and violence will occur and provide an opportunity for the Minister to evaluate the success of the regime and identify any potential changes that are needed for improvement. Additionally, the Labour Program, as part of its due diligence, continually monitors performance through regular internal monitoring and performance measurement. This work includes monitoring of the ongoing impacts of Labour Program activities on vulnerable workers.

Contact

Hilary Flett
Director
Harassment and Violence Prevention Division
Labour Program
Employment and Social Development Canada
Place du Portage, Phase II, 10th Floor
165 Hôtel-de-Ville Street
Gatineau, Quebec
K1A 0J2
Telephone: 819‑654‑3151
Email: EDSC.TRA.PHV-HVP.LAB.ESDC@labour-travail.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsections 125(3) ^{footnote a} and 157(1) ^{footnote b} of the Canada Labour Code ^{footnote c}, proposes to make the annexed Work Place Harassment and Violence Prevention Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Hilary Flett, Director, Harassment and Violence Prevention Division, Labour Program, Employment and Social Development Canada, Place du Portage, Phase II, 10th Floor, 165 Hôtel-de-Ville Street, Gatineau, Quebec K1A 0J2 (tel.: 819‑654‑3151; email: EDSC.TRA.PHV-HVP.LAB.ESDC@labour-travail.gc.ca).

Ottawa, April 11, 2019

Jurica Čapkun
Assistant Clerk of the Privy Council

Work Place Harassment and Violence Prevention Regulations

General

Interpretation

Definitions

1 The following definitions apply in these Regulations.

• Act means Part II of the Canada Labour Code. (Loi)
• designated recipient means a person who is designated by the employer under section 14. (destinataire désigné)
• occurrence means an occurrence of harassment and violence in the work place. (incident)
• principal party means an employee or employer who is the object of an occurrence. (partie principale)
• responding party means the person who, in a notification given under subsection 15(1), is identified as having been responsible for the occurrence. (partie intimée)
• third party means a person who witnessed an occurrence or is informed of an occurrence by the principal party or responding party. (tiers)

Applicable Partner

Reference

2 (1) In these Regulations, a reference to the “applicable partner” is to be read as a reference to the policy committee or, if there is no policy committee, as a reference to the work place committee or the health and safety representative.

Joint matters

(2) If the employer and the applicable partner are unable to agree on any matter that is required by these Regulations to be done jointly by them, the employer’s decision prevails.

Former Employees

Prescribed circumstances — extension

3 The Minister may extend the time period referred to in subsection 125(4) of the Act if a former employee demonstrates in an application to the Minister that they were unable to make the occurrence known to the employer within the time period because they incurred trauma as a result of the occurrence or because of a health condition.

Time period to make complaint

4 For the purpose of subsection 127.1(12) of the Act, a former employee may make a complaint under subsection 127.1(1) of the Act until the day that is the later of

• (a) three months after the day on which the former employee ceases to be employed by the employer; and
• (b) if a notification of the occurrence was given under subsection 15(1), three months after the day on which the resolution process is completed in respect of the occurrence.

Prevention and Protection Measures

Work Place Harassment and Violence Prevention Policy

Joint development

5 (1) The employer and the applicable partner must jointly develop a work place harassment and violence prevention policy.

Policy content

(2) The policy must contain the following elements:

• (a) the employer’s mission statement regarding the prevention and protection against harassment and violence in the work place;
• (b) the respective roles of unions, policy committees, work place committees and health and safety representatives in relation to harassment and violence in the work place;
• (c) the factors that contribute to work place harassment and violence;
• (d) an outline of the training that will be provided regarding work place harassment and violence;
• (e) an outline of the resolution process, including
  • (i) the name or identity of the designated recipient, and
  • (ii) the manner in which a principal party or third party may notify the employer or the designated recipient of an occurrence;
• (f) the reasons for which, following a notification of an occurrence, a review and update of the work place assessment must be conducted under subsection 7(1);
• (g) the means by which the employer is to be informed of external dangers, such as family violence, that could give rise to harassment and violence in the work place and the measures that the employer may implement to minimize those dangers;
• (h) a summary of the emergency procedures that must be implemented when an occurrence poses an immediate danger to the health and safety of an employee or there is a threat of such an occurrence;
• (i) the manner in which the employer will protect the privacy of persons who are involved in an occurrence;
• (j) any recourse, other than one under the Act or these Regulations, that may be available to persons who are involved in an occurrence;
• (k) the support measures that are available to employees; and
• (l) the name of the person who is designated to receive a complaint made under subsection 127.1(1) of the Act.

Policy to be made available

(3) The employer and the applicable partner must jointly make the policy available to all employees.

Joint policy update

(4) The employer and the applicable partner must jointly update the policy, if necessary, following an update to the work place assessment or if there is a change to any element of the policy.

Work Place Assessment

Joint assessment required

6 (1) The employer and the applicable partner must jointly carry out a work place assessment that consists of the identification of risks under section 9 and the development and implementation of preventive measures under section 10.

Joint monitoring and updates

(2) The employer and the applicable partner must jointly monitor the accuracy of the work place assessment and update it, if necessary, in order to reflect a change to the information set out in the assessment, including

• (a) a change to the risks identified under section 9; and
• (b) a change that compromises the effectiveness of a preventive measure developed and implemented under section 10.

Review after three years

(3) The employer and the applicable partner must jointly review the work place assessment every three years and, if necessary, update it.

Joint review and update

7 (1) The employer and the applicable partner must jointly review and, if necessary, update the work place assessment if a notification of an occurrence is given under subsection 15(1) and the resolution process cannot proceed for any of the following reasons:

• (a) the principal party chooses to remain anonymous or, at any time before an occurrence is investigated, chooses not to proceed with the resolution process; or
• (b) the responding party is not an employee or the employer.

Multiple occurrences

(2) If a review and update is being conducted under subsection (1) and a notification is given under subsection 15(1) of another occurrence that involves substantially the same matters and for which a review and update is also required under subsection (1), those occurrences may be addressed together in one review and update.

Qualifications

8 The employer must ensure that each individual who is directed by the employer to identify the risks referred to in section 9, or to implement the preventive measures referred to in section 10, is qualified to do so by virtue of their training, education or experience.

Identification of risks — factors

9 The employer and the applicable partner must jointly identify the risks related to harassment and violence in the work place, taking into account

• (a) the culture, conditions and activities of the work place; and
• (b) any reports, records and data that are related to harassment and violence in the work place.

Preventive measures — development and implementation

10 (1) Within six months after the risks are identified under section 9, the employer and the applicable partner must jointly

• (a) develop preventive measures that, to the extent feasible, eliminate or minimize those risks;
• (b) develop an implementation plan for the preventive measures; and
• (c) implement the preventive measures in accordance with the implementation plan.

No additional risk

(2) The employer must ensure that the preventive measures do not create or increase the risk of harassment and violence in the work place.

Emergency Procedures

Joint development and implementation

11 (1) The employer and the applicable partner must jointly develop emergency procedures that are to be implemented if

• (a) an occurrence poses an immediate danger to the health and safety of an employee; or
• (b) there is a threat of an occurrence referred to in paragraph (a).

Procedures available

(2) The employer and the applicable partner must jointly make the emergency procedures available to all employees.

Training

Joint development or identification

12 (1) The employer and the applicable partner must jointly develop or identify the training on work place harassment and violence that is to be provided to employees, the employer and the designated recipient.

Joint training review and update

(2) The employer and the applicable partner must jointly review the training at least once every three years and must update the training if necessary or following an update to the work place harassment and violence prevention policy.

Required training elements

(3) The training must be specific to the culture, conditions and activities of the work place and include the following elements:

• (a) the elements of the work place harassment and violence prevention policy;
• (b) the relationship between work place harassment and violence and the prohibited grounds of discrimination set out in the Canadian Human Rights Act;
• (c) how to recognize, minimize and prevent work place harassment and violence;
• (d) crisis prevention, personal safety, and de-escalation techniques; and
• (e) how to appropriately respond to various types of occurrences.

Training every three years

(4) Subject to subsection (6), the employer must receive training, and must ensure that employees and the designated recipient receive training, once every three years.

Initial training

(5) The employer must ensure that

• (a) the designated recipient receives training before assuming their duties under these Regulations; and
• (b) each employee receives training within three months after the day on which their employment begins.

Additional training

(6) The employer must provide additional training, if necessary,

• (a) to employees if there is an update to the training under subsection (2); or
• (b) to an employee who is assigned to a new activity or role for which there is an increased or specific risk of work place harassment and violence.

Support Measures

Information available to employees

13 The employer shall make available to employees information respecting the medical, psychological or other support services that are available within their geographical area.

Resolution Process

Notification

Designated recipient

14 The employer must designate a person as a designated recipient to whom notification of an occurrence may be given.

Notification

15 (1) A principal party or third party may notify the employer or the designated recipient of an occurrence.

Anonymous notification

(2) A principal party or a third party may notify the employer or the designated recipient anonymously.

Response to third party

(3) If the employer or designated recipient, as the case may be, is notified of an occurrence by a third party who is not anonymous, they must provide the third party with confirmation that the notification has been received within five days after the day on which it is received.

Resolution

Response

Response to principal party

16 (1) Within five days after the day on which they are notified of an occurrence, the employer or designated recipient, as the case may be, must contact the principal party and

• (a) confirm that the notification has been received or inform them that a notification has been received from a third party;
• (b) inform them of the manner in which the work place harassment and violence prevention policy is accessed;
• (c) explain each step of the resolution process; and
• (d) inform them that they may, at any time, be represented during the resolution process.

Response to responding party

(2) On the first occasion that the employer or designated recipient, as the case may be, contacts the responding party regarding the occurrence, they must

• (a) inform them of the manner in which the work place harassment and violence prevention policy is accessed;
• (b) explain each step of the resolution process; and
• (c) inform them that they may, at any time, be represented during the resolution process.

Early Resolution

Reasonable effort

17 (1) The employer or designated recipient, as the case may be, must make every reasonable effort to resolve the occurrence.

No early resolution

(2) If the occurrence is not resolved under subsection (1) and the principal party chooses to proceed with the resolution process, the principal party has the choice to complete the resolution process by means of either conciliation or an investigation.

Conciliation

Conditions for conciliation

18 (1) Conciliation of an occurrence may proceed only if an investigation of the occurrence has not begun and if the principal party and the responding party agree to conciliation and agree on who is to facilitate the conciliation.

No conciliation

(2) If the conciliation cannot proceed, or it is unsuccessful, and the principal party chooses to proceed with the resolution process, the occurrence must be investigated.

Investigation

Notice of investigation

19 The employer or the designated recipient, as the case may be, must provide the principal party and the responding party with notice that an investigation is to be carried out.

Selection of investigator

20 (1) The employer or the designated recipient, as the case may be, the principal party and the responding party must select the person who is to act as the investigator. However, if they are unable to agree on an investigator within 60 days after the day on which the notice is given under section 19, the employer must request that the Minister select the investigator.

Investigator’s qualifications

(2) For the purposes of these Regulations, an investigator must

• (a) be a person other than the responding party or one who directly reports to the responding party;
• (b) be trained in investigative techniques;
• (c) have knowledge, training and experience that is relevant to harassment and violence in the work place; and
• (d) have knowledge of the Act, the Canadian Human Rights Act and any other legislation that is relevant to harassment and violence in the work place.

Statement of qualifications

(3) For the purpose of selecting the investigator under subsection (1), the following information must be provided in respect of each person who is proposed to act as the investigator:

• (a) their name;
• (b) if they are an employee of the employer, their job title and the name of the person to whom they directly report;
• (c) a description of their education and training;
• (d) a description of their experience in conducting work place investigations, including the number of years they have been conducting them; and
• (e) a description of any experience that they have which is relevant to the nature of occurrence that is to be investigated.

List of potential investigators

(4) The employer must not propose a list of persons who may act as the investigator unless the list has been jointly developed or identified for that purpose by the employer and the applicable partner.

Information for investigator

21 The employer or the designated recipient, as the case may be, must provide the investigator with all information that is relevant to the investigation.

Investigator’s reports

22 (1) The investigator must investigate the occurrence and, after the investigation is concluded, provide the employer, the principal party and the responding party with

• (a) a final report that sets out
  • (i) a detailed description of the occurrence,
  • (ii) the methodology used for their investigation,
  • (iii) their analysis and findings, and
  • (iv) their recommendations to eliminate or minimize the risk of a similar occurrence; and
• (b) a summary report that does not disclose, directly or indirectly, the identities of the principal party and the responding party and that sets out
  • (i) a general description of the occurrence,
  • (ii) a summary of their analysis and findings, and
  • (iii) the recommendations referred to in subparagraph (a)(iv).

Identity of witnesses

(2) A report under subsection (1) must not disclose, directly or indirectly, the identity of a third party or any witness.

Implementation of Recommendations

Summary report

23 (1) The employer must provide a copy of the summary report to the applicable partner.

Joint determination

(2) The employer and the applicable partner must jointly determine which of the recommendations set out in the summary report are to be implemented.

Implementation

(3) The employer must implement all recommendations that are determined to be implemented under subsection (2).

Completion of Resolution Process

Criteria

24 For the purpose of these Regulations, the resolution process is completed in respect of an occurrence if

• (a) early resolution or conciliation is successful;
• (b) the principal party chooses, at any time before an occurrence is investigated, not to proceed with the resolution process and the employer reviews and updates the work place assessment in accordance with section 7; or
• (c) in the case where there is an investigation of an occurrence,
  • (i) the investigator has provided the reports in accordance with subsections 22(1) and 23(1), and
  • (ii) the employer has implemented the recommendations referred to in subsection 23(3).

Time period — early resolution and conciliation

25 (1) The employer must ensure that early resolution and conciliation, if any, are concluded within 180 days after the day on which the employer, or designated recipient, as the case may be, is notified of the occurrence under subsection 15(1).

Time period — work place assessment or investigation

(2) The employer must ensure that the resolution process, in the circumstances referred to in paragraph 24(b) or (c), is completed within one year after the day on which the employer or designated recipient, as the case may be, is notified of the occurrence under subsection 15(1).

Monthly status updates

26 For every occurrence for which a notification is given under subsection 15(1), the employer or designated recipient, as the case may be, must provide monthly updates regarding the status of the resolution process to

• (a) the principal party, beginning on the first month after the month in which the employer or designated recipient, as the case may be, is notified of the occurrence under subsection 15(1) and ending on the month in which the resolution process is completed; and
• (b) the responding party, beginning on the first month after the month in which the responding party is first contacted by the employer or designated recipient, as the case may be, concerning the occurrence, and ending on the month in which the resolution process is completed.

Records and Reports

Health and Safety Records

Records to be kept

27 (1) The employer must keep the following health and safety records:

• (a) the work place harassment and violence prevention policy;
• (b) a copy of the documents that form part of the work place assessment;
• (c) a copy of the documents that form part of each review and update of the work place assessment;
• (d) for each instance where the employer and the applicable partner are unable to agree on a matter that is required by these Regulations to be jointly done by them, a record of the employer’s decision in that matter and the reasons for that decision;
• (e) a record of each notification that is given under subsection 15(1) and of each action taken in response to the notification;
• (f) for each instance where a time period set out in section 25 is not met, a document that sets out the reason for the delay;
• (g) a copy of each report that is prepared by an investigator under subsection 22(1);
• (h) a copy of each annual report;
• (i) a copy of each semi-annual report; and
• (j) a copy of each fatality report provided under subsection 30(1).

Time period

(2) The employer must keep the records referred to in paragraphs (1)(c) to (j) for a period of ten years.

Semi-annual Report to Applicable Partner

Content

28 Every six months, the employer must provide the applicable partner with a report that sets out the following information respecting the occurrences for which, in the preceding six months, the resolution process is completed by means of early resolution or conciliation:

• (a) the total number of the occurrences that were completed, respectively, by early resolution or conciliation;
• (b) the number of occurrences that were related, respectively, to sexual harassment and violence and non-sexual harassment and violence;
• (c) the locations where the occurrences took place, specifying the total number of occurrences that took place in each location;
• (d) the types of work place relationships that existed between the principal and responding parties, specifying the total number for each relationship type; and
• (e) the average time, expressed in months, that it took to complete the resolution process for an occurrence.

Annual Report to Minister

Content

29 On or before March 1 each year, the employer must provide the Minister with an annual report that sets out

• (a) their name or business name and their business number, as defined in subsection 248(1) of the Income Tax Act;
• (b) the name of a person who can be contacted in respect of the report; and
• (c) the following information respecting the occurrences for which, in the preceding calendar year, the employer and the designated recipient were notified of an occurrence under subsection 15(1):
  • (i) the total number of occurrences,
  • (ii) the number of occurrences that were related, respectively, to sexual harassment and violence and non-sexual harassment and violence,
  • (iii) the number of occurrences that resulted in the death of an employee,
  • (iv) if known, the number of occurrences that fell under each prohibited ground of discrimination set out in subsection 3(1) of the Canadian Human Rights Act,
  • (v) the locations where the occurrences took place, specifying the total number of occurrences that took place in each location,
  • (vi) the types of work place relationships that existed between the principal and responding parties, specifying the total number for each relationship type,
  • (vii) the manners in which occurrences were completed under the resolution process, specifying the total number completed in each manner, and
  • (viii) the average time, expressed in months, that it took to complete the resolution process for an occurrence.

Fatality Report

Time period

30 (1) Within 24 hours after being notified of an occurrence that results in the death of an employee, the employer must report the occurrence to the Minister.

Content

(2) The report must set out the following information:

• (a) the employer’s name or business name and business number, as defined in subsection 248(1) of the Income Tax Act;
• (b) the name of a person who can be contacted in respect of the report; and
• (c) the date and time of the occurrence.

Transitional Provision

Existing employees

31 Despite subsection 12(5), within six months after the day on which these Regulations come into force, an employer must receive the training referred to in section 12 and must ensure that any employee who occupies a position with the employer on the day on which these Regulations come into force receives that training.

Consequential Amendments

Canada Labour Standards Regulations

32 The reference to “Sexual harassment” in Schedule II to the Canada Labour Standards Regulations ^{footnote 29} is repealed.

Canada Occupational Health and Safety Regulations

33 The Canada Occupational Health and Safety Regulations ^{footnote 30} are amended by adding the following after subsection 15.2(2):

(3) This Part does not apply in respect of occurrences of harassment and violence in the work place.

34 Paragraph 17.5(1)(a) of the Regulations is replaced by the following:

• (a) to be implemented if any person commits or threatens to commit an act, other than an occurrence of harassment and violence, that is likely to be hazardous to the health and safety of the employer or any of his or her employees;

35 Part XX of the Regulations is repealed.

On Board Trains Occupational Health and Safety Regulations

36 The On Board Trains Occupational Health and Safety Regulations ^{footnote 31} are amended by adding the following after section 11.1:

Application

11.11 This Part does not apply in respect of occurrences of harassment and violence in the work place.

37 Paragraph 13.7(1)(a) of the Regulations is replaced by the following:

• (a) if any person commits or threatens to commit an act, other than an occurrence of harassment and violence, that is likely to be hazardous to the health or safety of the employer or any employees;

38 Part XV of the Regulations is repealed.

Oil and Gas Occupational Safety and Health Regulations

39 The Oil and Gas Occupational Safety and Health Regulations ^{footnote 32} are amended by adding the following after section 16.1:

Application

16.11 This Part does not apply in respect of occurrences of harassment and violence in the work place.

40 Paragraph 18.9(1)(a) of the Regulations is replaced by the following:

• (a) if any person commits or threatens to commit an act, other than an occurrence of harassment and violence, that is likely to be hazardous to the safety or health of the employer or any employee;

Coal Mining Occupational Health and Safety Regulations

41 The Coal Mining Occupational Health and Safety Regulations ^{footnote 33} are amended by adding the following after the heading before section 162:

Application

161.1 This Part does not apply in respect of occurrences of harassment and violence in the work place.

Maritime Occupational Health and Safety Regulations

42 Section 90 of the Maritime Occupational Health and Safety Regulations ^{footnote 34} and the heading before it are repealed.

43 Division 2 of Part 5 of the Regulations is repealed.

44 The Regulations are amended by adding the following after section 274:

Application

274.1 This Part does not apply in respect of occurrences of harassment and violence in the work place.

45 Paragraph 277(j) of the Regulations is repealed.

Aviation Occupational Health and Safety Regulations

46 The Aviation Occupational Health and Safety Regulations ^{footnote 35} are amended by adding the following after section 10.1:

Application

10.11 This Part does not apply in respect of occurrences of harassment and violence in the work place.

Coming into Force

S.C. 2018, c. 22

47 These Regulations come into force on the day on which sections 0.1 to 16 and 18 of 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, chapter 22 of the Statutes of Canada, 2018, come into force, but if they are registered after that day, they come into force on the day on which they are registered.