Hicks Morley | Federal Update: What Employers Need To Know

In this edition of the Federal Post, we discuss a case recently argued at the Supreme Court of Canada that will consider the scope of the “workplace” under the Canada Labour Code (Code).

We also look at who is a “competent person” for the purpose of conducting specific investigations under the Code, the new proposed Harassment and Violence Prevention Regulations and the consultation on providing free menstrual products in the federal workplace. Finally, we review the legislation that we are monitoring.

Supreme Court of Canada to Consider Scope of “Workplace” under Canada Labour Code

How far does the “workplace” extend for health and safety purposes? We may soon find out.

In 2017, the Federal Court of Appeal rendered Canadian Union of Postal Workers v. Canada Post Corporation in which a majority of the Court held that pursuant to section 125(1)(z.12) of the Code, the employer Canada Post was obligated to annually inspect not only its physical workplace in Burlington, Ontario but also areas where employees worked outside of that physical workplace, e.g. letter carrier routes.

By way of background, in 2012 a member of Canada Post’s health and safety committee filed a complaint under the Code that the employer was required to inspect not only the physical workplace but letter carrier routes as well. A Health and Safety Officer agreed, but that decision was set aside by an Appeals Officer who found that s. 125(1)(z.12) distinguishes between those circumstances where the employer controls the workplace and those where it does not. The employer did not have “physical control” over the routes and therefore could not ensure areas outside the physical building were inspected. That decision was upheld by the Federal Court.

On appeal, a majority of the Federal Court of Appeal found that the Appeals Officer had essentially redrafted s. 125(1)(z.12) and that he unreasonably concluded that the employer could not fulfill its obligations under that section because it had no control over the workplace. The dissenting justice would have dismissed the appeal on the basis that the Appeals Officer’s interpretation was reasonable and did not undermine the health and safety objectives of the Code.

Canada Post successfully sought leave to appeal the Federal Court of Appeal decision to the Supreme Court of Canada and the matter was argued in December 2018. Hicks Morley’s Michael Hines, Lauri Reesor and Greg Power appeared at the Supreme Court of Canada on behalf of five companies that intervened given the potential widespread implications of the decision to other federal workplaces. Stay tuned!

Who is a “Competent Person” under the Canada Labour Code?

Under the Code and its regulations, an employer must appoint a competent person to investigate incidents of violence in the workplace. Three recent decisions[1] of the Occupational Health and Safety Tribunal of Canada provide some guidance to employers in appointing a competent person to investigate incidents:

✔ A competent person is objectively impartial (attitude of mind of the person, involving a capacity to proceed with the investigation with an open mind, with neutrality and in a disinterested way. It implies an inclination to weigh the facts and opinions equally and without favouritism or prejudice towards one of the parties, and without having pre-judged the issue).

✔ A competent person is subjectively impartial (seen by all parties, the complainant, the employer and the alleged perpetrator, to be impartial).

✔ A competent person has knowledge, training and experience in issues relating to workplace violence and has knowledge of relevant legislation.

✔ A competent person may be an employee (whether in management position or not) of the employer as long as person acts independently from employer.

✔ There must be consensus. An employer must obtain the express agreement of the parties in question about the impartiality of the chosen investigator. Where the complainant does not believe any internal investigator to be impartial, the employer must hire an external investigator.

✔ Employers should explain the process for notification and investigation prescribed in the Regulations to employees to ensure that there is consensus on the appointed investigator.

✔ Conditions of Competency must be met at the time of the appointment and any objection or debate over them ought to be resolved at that time.

✘ The cost of an external investigator does not excuse a breach of the legislation.

✘ Being an employee of the employer does not automatically disqualify an investigator as a “competent person.”

✘ Where employees express concerns or reservations with impartiality, for example if they indicate that there is a “lack of trust” or advise that they are proceeding with “extreme caution”, these are indices of a failure by the complainant to accept the investigator’s impartiality. The investigation should not proceed until a competent person is appointed.

✘ Whether there was objective impartiality throughout the investigation is not sufficient to determine a person was a “competent person” if there is no consensus on the individual’s subjective impartiality.

In sum, it is important to ensure that the appointed investigator is subjectively impartial to all parties before they begin their investigation to ensure that the individual can be a competent person for the purpose of the Code.

Federal Government Releases Proposed Harassment and Violence Prevention Regulations

As previously discussed, the federal government has undertaken an overhaul of the violence and harassment protections under the Code and the Parliamentary Employment and Staff Relations Act (PESRA) through 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 (Act).

Primarily, the Act broadens the purpose of Part II of the Code to include preventing harassment and violence, as well as physical and psychological injuries and illnesses. It makes the necessary consequential amendments, such as adding a definition of “harassment and violence” and requiring employers to:

prevent and protect against harassment and violence in the workplace
provide training to supervisors and managers
respond to occurrences of harassment and violence in the workplace, including investigating and offering support to affected employees.

In order to support these legislative changes, the federal government has proposed Work Place Harassment and Violence Prevention Regulations, new stand-alone regulations that set out the following requirements:

a jointly developed workplace harassment and violence prevention policy, detailing how the organization will address harassment and violence in the workplace (note that under the proposed Regulation, where employers are required to do something “jointly” it means they must do it with the “policy [health and safety] committee or, if there is no policy committee, with the workplace committee or health and safety representative”)
a jointly conducted workplace assessment to identify risks of violence and harassment in the workplace, as well as a requirement to implement preventive measures to protect against these risks
jointly developed “emergency procedures” to address situations where an occurrence of violence or harassment in the workplace poses an immediate danger to the health and safety of an employee, or when there is a threat of such an occurrence happening in the workplace
jointly developed training, which must be delivered to all employees, employers and designated recipients and which will have to be performed at least every three years
making information regarding support services available to employees who may be in need.

Of interest, these new federal requirements would provide a more central role for the health and safety committee or representative than currently exists under the Ontario statutory requirements for the Joint Health and Safety Committee.

Additionally, the proposed regulations set out comprehensive requirements for an occurrence resolution process. Employers must identify a designated recipient for occurrence reports and ensure that a response is provided to the reporting party within five (5) days, setting out the next steps for the resolution process. The resolution process must include a mechanism for early resolution, conciliation and investigation. Investigators must demonstrate that they meet qualification requirements and the parties must be advised as to how the investigator will be appointed.

A final report will be required for all occurrences that proceed to an investigation, the contents of which must include the following and must be provided to the parties to the occurrence:

a detailed description of the occurrence
the methodology used for their investigation
the investigator’s analysis and findings

Furthermore, a summary report, the contents of which must include the following (and which does not disclose the identity of the parties to the occurrence) must be provided to the appropriate workplace committee:

a general description of the occurrence
a summary of the investigator’s analysis and findings
the recommendations referred to in the detailed report to the parties

Additional record-keeping and reporting requirements are proposed, including:

fatality reports where there is an occurrence in the death of an employee, which must be filed within 24 hours of the employer being notified of the occurrence
semi-annual reports to the workplace committee regarding the number, type and location of occurrences as well as the type of relationships between the parties and the length of time required for the resolution of the occurrence
annual reports to the Minister, including similar information as well as the number of occurrences that resulted in the death of an employee, the number of occurrences that fell under each prohibited ground of discrimination under the Canadian Human Rights Act, and the manners in which occurrences were resolved under the resolution process

The consultation period on the proposed regulations has recently closed. Pending further amendments, the regulations are expected to come into force on the same date that the legislative amendments under Bill C-65 are to come into force.

Federal Government Consulting on the Provision of Free Menstrual Products in the Workplace

The federal government has posted a notice entitled “Proposed amendments to certain regulations made under Part II of the Canada Labour Code to require the provision of free menstrual products in the workplace.” It is inviting input from interested parties on specified questions relating to the provision of free menstrual products in federally regulated workplaces, as well as any additional comments parties may wish to make. The consultation period is open for 60 days (from May 4, 2019).

Legislation We Are Monitoring

We are watching the following amendments to federal legislation and will provide further updates as they come into force:

Canada Labour Code – Incoming Amendments

Bill C-44, Budget Implementation Act, 2017, No. 1 (see our Federal Post of July 24, 2017 Budget Bill Passes, Making Significant Changes to the Canada Labour Code)

Bill C-63, Budget Implementation Act, 2017, No. 2 (see our Federal Post of November 27, 2017 Changes to the Canada Labour Code and PIPEDA are Coming)

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 (see our Federal Post of November 27, 2017 Changes to the Canada Labour Code and PIPEDA are Coming)

Bill C-86, Budget Implementation Act, 2018, No. 2 (see our Federal Post of November 2, 2018 Federal Government Proposes Significant Workplace Law Reforms)

Pay Equity Act

Bill C-86, Budget Implementation Act, 2018, No. 2 (see our Federal Post of November 2, 2018 Federal Government Proposes Significant Workplace Law Reforms)

Accessible Canada Act

Bill C-81, An Act to ensure a barrier-free Canada (see our Human Resources Legislative Update Federal Accessibility Legislation Tabled. On May 13, 2019, Bill C-81 was passed by the Senate with amendments and referred back to the House of Commons. On May 29, 2019, the House of Commons concurred with those amendments. )

If you have any questions about issues raised in this Federal Post or any other matter affecting your federally regulated workplace, please contact your Hicks Morley lawyer .

[1] Employment and Social Development Canada v. Canada Employment and Immigration Union, 2018 OHSTC 11; Natural Resources Canada v. Professional Institute of the Public Service of Canada, 2019 OHSTC 4; Canada Post Corporation v. Canadian Union of Postal Workers, 2019 OHSTC 5

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

Federal Post

Federal Update: What Employers Need To Know