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Wait-and-see approach to fulfilling Bill 168 requirements may result in unwelcome scrutiny, lawyer

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By now, all employers in Ontario should have been busy conducting their workplace violence risk assessments, ready to post  their workplace violence and harassment policies in “a conspicuous place in the workplace”, as well as preparing their workplace violence and harassment programs. Certainly the government, as well as scores of advisors and experts, have made both the requirements and the timelines perfectly clear for months. But what happens if your workplace is not in compliance with these Bill 168 requirements by June 15?

Lawyer Adrian Miedema, and his Fraser Milner Casgrain (FMC) LLP colleagues Andy Pushalik and Kristin Taylor, warned employers attending a recent seminar that orders and/or charges from Ministry of Labour inspectors are not only possible, but likely in many business sectors.

Over the last few years, the Ministry of Labour has significantly bumped up its number of inspectors, with the logical result of increasing its overall enforcement activities. The ministry and the Workplace Safety and Insurance Board keep a record of their enforcement activities from 1997 on the MOL website, http://www.labour.gov.on.ca/english/hs/pubs/enforcement/index.php.  These statistics clearly show that inspections and the resulting orders, prosecutions and fines have almost doubled in the last 10-12 years.

Risk assessment: Focus is on people

Those employers that have yet to embark upon their risk assessment are already well behind in completing the essential first step. This assessment provides the information that will help the management team and HR determine their programs, instruction, and information requirements. FMC suggests that if your workplace has not already done so, the best approach may be to form a team composed of management member(s), an HR rep, the health and safety manager, worker members (to ensure buy-in) and, possibly, an outside consultant. Keep the team relatively small – for instance, five is a workable number. Members of team should have good knowledge of the workplace and business.

But, he warns, the team should not focus its attention on the nature of the business. Instead, focus first on people: people cause violence. The FMC lawyers suggest the following six steps:

1.    Ask: who are the people who might commit violence or harassment in your workplace, and why. Is it employees, clients, members of the public?

2.    Then ask: what can we do to reduce the risk from any of these people?

3.    Review previous incidents of violence in your workplace. Documentation regarding previous incidents of violence might be found in: Joint health and safety committee minutes; files on disciplinary action for violence; grievance files (unionized workplaces); and/or Word search for word “violence” in files or e-mails on your computer or server (ask IT to help).

4.    Ask employees for their input via an employee survey. This is not something that’s required under the legislation, but may provide some valuable information. Ask employees to describe any incidents of violence they have encountered in the workplace in the past, potential future violence they might suggest and for ways the employer can prevent.

5.    Assess “circumstances common to similar workplaces” by approaching industry associations and colleagues.

6.    Prepare a report on the results of the assessment and invite comments.

Once the assessment is completed, your company should have most of the information it needs to develop the harassment and violence policies and programs specific to your workplace.

Instruction and information: how much is enough

Miedema notes that despite the wealth of information, there are still some common and understandable areas of confusion for many employers across the province.  One area in particular is the requirement that employers provide information and instruction about workplace violence and harassment. The question begs: how much information is enough? The answer basically lies in the results of a company’s own risk assessment, from which each company should plan their individual policies and program.

The FMC lawyers note there is a difference between “information” (e.g., this person is dangerous) and “instruction” (e.g., this is what you should do if violence occurs). 

Small to mid-sized employers may find it doable to gather all employees into a room and cover material in a group setting. Larger employers, however, may wish to examine the feasibility of other options, such as webinars, distribution of a written document, or departmental meetings. Make sure receipt of documents, and/or a written record of attendance at meetings are kept.

Alberta and Manitoba already have programs in place, as well as some helpful information materials that Ontario workplaces might find useful. Click here for a pdf version of Manitoba’s “Guideline for Preventing Harassment and Violence in the Workplace.” Alberta’s “Preventing Violence and Harassment at the Workplace” is available here.

Ontario just announced that it has developed new resource tools to help prevent violence and address harassment in the workplace. The workplace violence tool kit and accompanying guide will assist employers in complying with these new requirements by helping them to:

  • Develop workplace violence and harassment policies and programs;
  • Assess risks of workplace violence including situations involving handling of cash, dealing with potentially violent clients, working alone, working in high-crime areas, protecting valuable goods and transporting people or goods; and
  • Identify possible ways to control those risks.

There will also be information on how to deal with domestic violence in the workplace, including how to develop a safety plan.

The tool kit and guide are available on the Ministry of Labour's website at www.labour.gov.on.ca.


Fraser Milner Casgrain LLP is a national business law firm with full-service offices in Montréal, Ottawa, Toronto, Edmonton, Calgary and Vancouver. Adrian Miedema is a partner in the Toronto Employment group of Fraser Milner Casgrain LLP. He advises and represents employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. Contact him at adrian.miedema@fmc-law.com. Kristin Taylor is the manager of the Toronto office’s Employment & Labour Group. She provides practical and strategic advice to employers on a wide range of employment matters, including employee hiring, discipline and termination; severance packages; corporate restructuring; employment agreements and personnel policies; certification applications; privacy compliance; and employment standards and human rights issues.  Andy Pushalik an associate in the firm’s Employment and Labour Group.

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