New federal harassment rules can apply to everyone

Federally regulated employers have new rules to follow on workplace harassment and violence prevention, but all employers should take note

New federal harassment rules can apply to everyone

It’s 2021, which means that certain employers in Canada have to crack down even more on workplace harassment.

This is because Bill C-65, the Workplace Harassment and Violence Prevention Regulations, came into effect for federally regulated employers on Jan. 1. The new legislation requires employers to get tougher on workplace harassment, including measures such as conducting workplace assessments, developing workplace harassment and violence prevention policies (and training on those policies), and establishing a specific process for handling incidents that must be consistently followed.

The new rules, which have been called “significantly more onerous and time-consuming,” apply only to federally regulated employers, but it would be a good idea for employers under other jurisdictions in Canada to take note. This legislation is the latest step in the fight against workplace harassment and violence and could lead the way for similar measures to be adopted by the provinces.

And it’s a step that is necessary. A Statistics Canada study found that in 2016, nearly one out of every five Canadian women had experienced some form of workplace harassment in the previous 12 months, while 13 per cent of men had. That’s a lot of people affected — not to mention certain co-workers drawn into bad situations due to their proximity, along with potentially decreased productivity from all involved.

New legislation or not, the legal consequences for not properly addressing workplace harassment are out there. In 2017, an Ontario court ordered an employer in the industrial sector to pay an employee $60,000 in moral damages, general damages totalling 10 months’ salary in lieu of notice of termination, and $25,000 in damages for a sexual harassment claim under the Human Rights Code. The company breached its obligation to act in good faith after it terminated the employee without cause when she raised workplace safety concerns related to persistent sexual harassment targeted against her: see Doyle v. Zochem Inc., 2016 CarswellOnt 19295.

Two years ago, the Canada Revenue Agency was on the hook for more than $60,000 in damages owed to a harassed employee for what the Federal Public Sector Labour Relations and Employment Board described as “the reckless manner in which it handled the initial investigation of her complaint that resulted in her being left in the immediate proximity of her harasser and that allowed him to continue harassing her.”

The damages included $20,000 for pain and suffering stemming from sex discrimination, $20,000 in special damages for the poor investigation, and nearly $23,000 for expenses related to the employee’s trauma counselling and treatment for anxiety and depression related to the harassment: see Doro v. Canada Revenue Agency, 2019 CarswellNat 691.

Big-time liability can not only come from poor investigations, but also for ignoring past ones and their outcomes. Also in 2019, the Ontario Court of Appeal ordered a telecommunications company to pay a former employee $114,000 in constructive dismissal damages. The company hired a former executive who had been dismissed for sexual harassment against the worker years ago and ignored her reminders of what he did when it recruited him again.

The court found that despite the company’s efforts to transfer the employee, a reasonable person would be able to see that her continued employment was intolerable with the executive back on board: see Colistro v. Tbaytel, 2019 ONCA 197.

The circumstances in the above cases would likely have been avoided it the employers took a harder line and a proactive approach as required in the new federal legislation. The federal government clearly views harassment and violence as problems that still exist in Canadian workplaces, and the number of court cases and human rights decisions out there supports that view.

The consequences can be serious, so the new federal rules should be taken seriously — whether they apply to your workplace or not.

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