Law Times

Law TiMes • March 1, 2010 NEWS Lifting the lid on workplace violence Definitions for key concepts leave employers in a conundrum BY JUDY VAN RHIJN For Law Times tario Occupational Health and Safety Act, it's the defi nition section that will present the biggest can of worms. In particular, the absence of defi nitions for many key concepts will have ad- visers and managers fi shing for pro- cedures that don't make more trouble than they solve. Th e latest legislation to grapple with hostility in the workplace was passed on Dec. 9 and comes into eff ect on June 15 of this year. While much of it is consistent with other provinces, law- yers like Meghan Ferguson of Hicks Morley Hamilton Stewart Storie LLP in Toronto are hearing concerns from employers trying to formulate new policies that the act leaves much to be defi ned. "Unfortunately, it's not like British Columbia, which provided a lot of resources on their web site when their legislation was launched," says Ferguson. "Th ere is very little in On- tario, so employers are stuck talking to legal counsel or contacting safe work- place organizations." Dan Palayew, a partner at Heenan W Blaikie LLP in Ottawa, notes this isn't the government's fi rst crack at workplace violence. "From a legisla- tive perspective, the prior Ontario law has been a patchwork quilt of com- mon law, arbitration, and workplace safety and insurance legislation. Bills have come in and gone out without being passed. In 1999, there was the OC Transpo coroner's inquest and in 2005 the Lori Dupont inquest, which both generated a specifi c bill." Palayew identifi es the newest con- cept in this legislation as the expanded defi nition of workplace violence. He recalls that when the bill fi rst came out, the defi nition focused on actual physi- cal force. Th e fi nal legislation has a def- inition with three parts: actual physical hen lawyers and employ- ers take a good look at the amendments to the On- force, attempted physi- cal force, and the threat provision involving a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physi- cal force. "Talk about a tricky defi nition with potential traps for in- terpretation," Palayew says. Another concept law- yers worry is not clearly defi ned is workplace ha- rassment. "Th e harass- ment defi nition is very vague and broad," says Palayew. "It is similar to what labour lawyers are used to in a human rights context, but there it's related to a prohibited ground such as race, religion, sex or place of origin." Palayew notes clients are worried 'Employers would have pre- ferred that they left harass- ment for human rights legisla- tion,' says Meghan Ferguson. workplace harassment," says Ferguson. "It's not an in-depth response. Th e government went to a halfway place with harassment." Th e labelling pro- vision that deals with the identifi cation of violent people pres- ents lawyers and em- ployers with a really thorny issue. "History of violence was never defi ned," says Fergu- son. "It was left for liti- gation. If there's one punch, do you tell all the employees? What if there's someone with a mental illness who's they could have a complaint that a supervisor is harassing someone be- cause the worker isn't happy with the management style. "Clients are asking if someone can potentially complain over the exercise of ordinary manage- ment functions, like a supervisor fol- lowing up [on] a late report or dealing with someone who is coming to work late every day. We need to see some interpretation by the courts." Ferguson agrees. "Employers would have preferred that they left harass- ment for human rights legislation. Th ey are concerned that it includes conduct that is not code-related." Still, Ferguson notes the defi nition of workplace harassment didn't go as far as addressing psychological harass- ment, which workers' groups were pushing to include. Th e response required when harass- ment is suspected also stops short of the requirements when violence is the issue. "Th e legislation stops at policy and general training, and you can't have work refusal for hurt feelings or off their medication and throws some- thing against the wall? What about children in the education sector? If little Jimmy hits one kid, do you label him with a history of violence?" "It is a multi-faceted problem requir- ing complex responses," Palayew warns. "Th ere are overlapping legal liabilities and rights, including defamation and privacy concerns. How much infor- mation are we going to reveal about individuals? Th e reason you ask for a medical report may be just to verify an absence. If the physician identifi es ag- gressive tendencies, there are competing privacy and [safety act] obligations." Ferguson points out there are also labour-relations issues. "Once you label someone, the other workers can pull work refusal. Previously, it had to be a physical condition or a piece of machin- ery that created danger to the worker. Now, it's anything as long as they're en- gaging in their employment." She notes as well that in Saskatch- ewan and British Columbia, there are similar provisions but believes those provinces aren't as eager to enforce them as Ontario. "I expect we'll see some litigation on a history of vio- lence. We are encouraging employers Court cuts will force people to pay up: critics BY TIM SHUFELT Law Times make it even more diffi cult to dispute a traffi c off ence, critics charge. People already have to wait for hours just to fi le a notice of intention to appear or get a court date, says Leon Levin, a Toronto paralegal who practises almost exclusively in traffi c court. Now, many of those opting A to fi ght a charge will have to take time off work on a weekday to access the courts, Levin says. Last month, the city re- leased its 2010 budget, which includes proposed service cuts and tax hikes to balance the books. Among the cuts are reduc- tions in the operating hours at proposal to eliminate Saturday services in To- ronto city courts will city court locations that would eliminate Saturday service and move back closing times to 4:30 p.m. from 5 p.m. "Toronto is the only munic- ipality in Ontario that provides services on Saturday," says city spokesman Kevin Sack. "With the right amount of notice for people, we're hoping it won't be too much of an in- convenience." Levin, however, says con- testing a provincial traffi c of- fence is already inordinately time-consuming. Without the option of at- tending court on Saturdays, many will be forced to accept the charge and pay the fi ne. "People have no choice be- cause they can't aff ord to waste time." While the city says the move will bring Toronto in line with every other jurisdiction in the province, Levin speculates the city has an ulterior motive for the change. "Th ey just want them to pay," he says. "And this is what they call access to justice." He says he frequently takes advantage of the Saturday court dates himself to address several of his clients' matters at once when the city courts are less congested. According to the city, how- ever, it was a convenience it could no longer aff ord to off er. "Sometimes, there are re- quirements to attend court that don't fi t in with our work schedules," Sack says. "People have vacation time they can use." He couldn't say how much the move will save but notes the savings are "suffi cient" to justify the change and help the city balance its budget. LT www.lawtimesnews.com Expand 1/8 - 2X.indd 1 2/25/10 9:47:30 AM to defi ne it internally." Another concept that has no defi ni- tion at all is domestic violence despite a provision that an employer must take steps to protect workers from it. "Employer obligations with respect to domestic violence are absolutely unique to Ontario," says Palayew. "An employer has to take every reasonable precaution. Th is is general Ontario human rights parlance. An employer will want to encourage workers to re- port violence outside the workplace so they can take measures to protect them and their co-workers. Th ey can then take precautions so the person who poses the threat doesn't enter the workplace." Even though the legislation isn't yet in force, employers appear to be taking the changes seriously. "I am yet to have a client who doesn't see it as a serious issue," Palayew says. "Most employers already have policies about workplace violence in place. Th ey are asking us to look at the existing policy and see if it is consistent with the new law. Gen- erally, what they're doing is updating and expanding the harassment policy because the [safety act] defi nition is so broad but they still have to have some sort of discretion with respect to inves- tigating and dealing with complaints. For workplace violence, frankly, most clients need brand-new policies. Th ey need specifi c provisions for recording and investigation and they must pay particular attention to the posting re- quirement where there are more than fi ve employees." Ferguson believes most workplace refusal policies will also need amend- ment but doesn't think the work in- volved in creating policies is onerous. "What is onerous is how far and how many hazards do they have to pre- dict? Employers must examine the workplace and may have to redesign portions of it to deal with potential threats. Th ey must ask, 'Have I done everything reasonably possible to protect my workers?'" LT PAGE 3 To advertise in an upcoming issue, contact our sales team: Karen Lorimer 905-713-4339 klorimer@clbmedia.ca Kimberlee Pascoe 905-713-4342 kpascoe@clbmedia.ca Kathy Liotta 905-713-4340 kliotta@clbmedia.ca

• Cover
• Legal Advice
• Independent Body
• Focus On Labour and Employment Law