Ontario’s workplace violence bill could use some major alterations (Guest commentary)

Provisions in Bill 168 concerning domestic violence and disclosure of information unlikely to prevent violence and apt to cause problems for employers

Peter Fonseca, Ontario’s minister of labour, introduced Bill 168 as a cure to the many problems brought to light by the coroner’s inquest into the tragic workplace murder of Lori Dupont, a nurse at a hospital in Windsor, Ont.

The inquest was the third in less than 10 years to recommend the government of Ontario take steps to amend the Occupational Health and Safety Act (OHSA) to deal with the issue of workplace violence.

Bill 168, an act to amend the OHSA to prevent and manage workplace violence and harassment, received first reading on April 20, 2009.

On Oct. 20, it received second reading and has been referred to committee for review. The two most controversial parts of the bill deal with the novel proposal to address domestic violence and to disclose to employees information regarding persons with histories of violent behaviour. The proposed amendments explicitly set out a duty for every employer to take specific steps to proactively prevent and manage workplace harassment and violence.

Here is a brief overview of the key requirements.

Definitions under the bill: Bill 168 defines workplace violence and harassment, as follows:

“Workplace harassment” means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought to be reasonably known to be unwelcome.

“Workplace violence” has a couple of different meanings. The first is the exercise of physical force by a person against a worker in a workplace that causes or could cause physical injury to the worker. The second is an attempt to exercise physical force against a worker in a workplace that could cause physical injury.

In comparison to other jurisdictions, Ontario has proposed fairly expansive definitions of workplace violence and harassment that include both the exercise and attempt to exercise physical force against another person, as well as unwelcome comment or conduct.

Policy and program: The proposed amendments require every employer that regularly employs more than five workers to develop and post a policy addressing workplace violence and harassment. An employer must also develop a program to implement that policy. The program must include measures to control risk of workplace violence and harassment, emergency response procedures, reporting procedures to be followed by workers and procedures for the investigation of incidents and worker complaints.

Under the bill, a Ministry of Labour inspector may also order an employer with five or fewer regularly employed workers to develop a policy and program respecting workplace violence and harassment.

Assessment of risk: Once all contributing factors are identified, an employer is obligated to assess the potential for violence at its workplace and implement appropriate controls to prevent and manage the risk for violence. The risk assessment must consider conditions of work at an employer’s workplace and those common to similar workplaces. An employer must share the results of the risk assessment with the joint health and safety committee or the workplace health and safety representative.

Notification and investigation: As with other serious incidents, the proposed amendments require an employer to notify the Ministry of Labour of an incident of violence as per section 52 of the act.

Right to refuse work: Bill 168 also proposes to amend the work refusal provisions of the OHSA to include workplace violence. The existing work refusal process under the act would apply, with the exception an endangered employee is required to stay only “as near as reasonably possible” to her workstation. The proposed amendments do not alter the limitation on essential public sector employees, such as firefighters and police officers, to refuse unsafe work that is inherent to their professions.

Domestic violence: Bill 168 places a duty on employers to take every reasonable precaution for the protection of a worker if the employer knows or ought to reasonably know there is a likelihood the safety of a worker may be endangered at the workplace by an act of domestic violence. No other Canadian legislation has placed such a duty on employers to deal with domestic violence in the workplace.

Although the language used for the domestic violence amendment under Bill 168 implies an objective standard, it is difficult to understand how employers will be able to prevent domestic violence from spilling over into the workplace.

“Who can judge whether an employer is reasonably aware or should be reasonably aware? Shall employers begin spying on their workers and are they liable if they do or do not spy?” said MPP Randy Hillier, an opposition backbencher. And MPP Mike Collie said:

“This bill is not going to end the scourge of domestic violence, nor does it seek to do that, or the scourge of violence in the workplace. But it does bring awareness. It does bring concrete steps.”

At a minimum, the domestic violence provisions of Bill 168 create potential liability for employers while having questionable benefits for the prevention of domestic violence.

Disclosure of individuals with a history of violent behaviour: Bill 168 also places employers in the awkward position of communicating to workers personal information about individuals with a history of violent behaviour.

The bill requires employers not disclose more information than is reasonably necessary to protect a worker from physical injury. However, it is not clear how the information, in and of itself, will protect a worker. In health-care or psychiatric workplaces, the status of a violent patient or client is generally addressed by internal policies and procedures.

It is not clear the legislation is needed for those types of workplaces. Statutory exemptions of the Personal Health Information Protection Act may have been sufficient, rather than amending the OHSA which potentially creates liability for employers. If the source of the risk of violence is a co-worker, there are serious questions with respect to the ability of employers to contain information about the violent history of a co-worker once it has been revealed to those who work in close proximity to that person.

There are further legal concerns about the application of the Ontario Human Rights Code. For example, if an employer is aware an employee has a criminal conviction for which he has been granted a pardon, is it still required to communicate the past criminal history to co-workers who work closely with that individual?

After the fact blame: Perhaps the most disturbing aspect of the domestic violence and disclosure of information with respect to individuals with violent histories is that, after a serious incident occurs, with the benefit of hindsight, employers are often blamed for not doing enough by the Ministry of Labour.

There is no good faith exemption for employers under Bill 168. In other words, no matter how well-advised and well-intentioned an employer is, if its view of its duties with respect to these problematic issues differs from that of the Ministry of Labour, the employer is at risk of receiving orders or, worse, being prosecuted by the Ministry of Labour after an incident of violence occurs at the workplace. The object of Bill 168 is not to prosecute employers and impose substantial fines but rather to reduce the risk of violence in the workplace.

Therefore, positive incentives could be a much more appropriate approach than the mere threat of prosecution that looms when Ministry of Labour inspectors investigate workplace incidents, including those relating to workplace violence.

With the recent conviction of the Centre for Addiction and Mental Health, a facility in Toronto, relating to a failure to stop workplace violence, and a $70,000 fine, before Bill 168 has been passed into law, one can only speculate this proposed legislation will result in even further aggressive enforcement through orders and prosecution by the Ministry of Labour.

These two problematic areas are not only difficult and costly for employers to consider how to comply but are also likely to be of little if any value in actually preventing workplace violence. Many of the policy, risk assessment, programs and training requirements of Bill 168 are to be commended. They are in line with other jurisdictions across Canada that have taken such initiative years ago. However, these two aspects of the Ontario approach are perhaps driven more by the Dupont inquest than by a broad-based requirement throughout workplaces in Ontario and ought to be revisited before the bill is passed into law.

Norm Keith is a partner at Gowling Lafleur Henderson in Toronto and head of the occupational health and safety workers’ compensation practice. He can be reached at [email protected], (416) 862-5699 or visit www.gowlings.com for more information.

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