Canada: New Occupational Health And Safety Act Regulations On Violence And Harassment In The Workplace/Civil Liability For Violence On Campus

INTRODUCTION

In light of recent court decisions in the United States and upcoming legislative changes in New Brunswick, there are two ways in which Canadian post-secondary institutions may begin to see an extension of their liability in tort.

First, New Brunswick has recently filed amendments to the General Regulation 91-191 ("General Regulations")¹ under the Occupational Health and Safety Act² ("OHSA") to protect employees from violence and harassment. New Brunswick is the last jurisdiction in Canada to enact such legislation. Having this protection entrenched in legislation will impose a requirement on employers to ensure they have policies in place to protect their employees. If their policies fall short, employers may open themselves up to liability under the OHSA.

Second, the California Supreme Court recently held that universities owe a duty to protect their students from foreseeable harm in the curricular setting. While this is not a Canadian decision, it is telling of a shift in the cultural attitude towards the liability of post-secondary institutions and, generally, the relationship between educational institutions and their students. If an educational institution is aware of a potential risk of harm and takes no mitigating steps, it may be held liable for harm that results.

In light of the above noted shifts, Canadian universities and colleges should review their workplace violence and campus violence policies. If no such documents exist, universities and colleges should begin to think about creating policies to ensure they are limiting their potential liability in the case of violence on campus.

NEW REGULATIONS – VIOLENCE AND HARASSMENT IN THE WORKPLACE

Back in November 2017, as a response to the labour movement occurring in the province, the Government of New Brunswick began addressing some of the concerns that were being expressed. One of the concerns raised was the lack of legislation on the topic of problematic workplace conduct. The New Brunswick OHSA and its regulations did not address workplace violence and/or harassment. Every other jurisdiction in Canada already has some form of legislation in place on this topic.

The government established a steering committee to help foster stronger relationships between the government and the labour movement. The steering committee was comprised of five ministers and four representatives from labour groups. This committee oversaw five working groups that were tasked with drafting recommendations to the government on how workplace violence and harassment could be addressed.³

On April 28, 2018, the government introduced the first draft of the legislation that will amend the General Regulation under the OHSA (the "New Amendments") to include new provisions respecting workplace violence and harassment. Labour, Employment and Population Growth Minister Gilles LePage stated:

The New Amendments were posted for public review until May 16. After this, the regulation was sent back for discussion with the steering committee to ensure that the New Amendments will adequately address the labour market and public's concerns.

The New Amendments filed outline specific precautions and procedures employers must follow to prevent and address workplace violence and harassment. The New Amendments were filed on August 22, 2018 and are currently set to come into force on April 1, 2019.

The New Amendments were announced on the National Day of Mourning, a day to recognize those who have been injured or killed because of workplace-related hazards. In his announcement, Minister LePage explained that these New Amendments are part of an attempt to minimize workplace hazards and ensure that employees are safe at work.⁵ The hope is that these New Amendments will ensure that all employers are actively working to mitigate the risk of such incidents occurring and to decrease the number of workplace-related incidents of violence and harassment in New Brunswick.

While many employers may already have policies in place to address violence and harassment in their workplace, many will need to either create policies or update their current policies to conform to the New Amendments which are scheduled to come into force April 1, 2019. The following are the two most significant changes employers will see:

1. Added definitions of violence and harassment

The New Amendments will add definitions for violence and harassment to the regulation. The definitions are similar to those in other provinces and reflect an attempt to cover various types of conduct that include actions, comments, and displays. The conduct may be a one-time occurrence or continuous.

The New Brunswick Nurses Union has criticized the initial draft of the New Amendments for being too restrictive in its definitions, and has recommended that the definition of violence be expanded to include psychological violence and that the definition of harassment be expanded to include conduct that would cause offence or humiliation to a worker.⁶

2. Employers must establish a code of practice

The New Amendments will require employers to actively prevent workplace harassment and violence. Employers will be required to assess the risk of violence at their place of employment. If a risk of violence is found, or if any other criteria outlined in the New Amendments is met (i.e. more than 20 employers, or employees in certain professions or fields) the employer must establish a written code of practice to mitigate this risk. This assessment must be conducted every time there is a change in the conditions at the place of employment or when ordered to do so.

Employers will also be required to establish a written code of practice with respect to harassment. The related subsections of the New Amendments set out the required contents of the code of practice and establish an onus on the employer to ensure adherence to the code.

Employers will need to establish a training program for employees and supervisors in respect of codes of practice established. There are no provisions regarding what this training program needs to look like other than it must address the codes of practice in place. The codes have to be reviewed once each year and will need to be updated where there is a change in conditionals at the place of employment or when ordered to do so.

In regards to investigations into complaints, employers will be required to ensure that the names of persons involved remain confidential unless it is necessary for the investigation, in order to take corrective measures, or required by law. Employers may only collect the minimum amount of personal information required for the purposes of the incident. This provision is likely an attempt to encourage individuals to come forward with complaints.

LIABILITY AT UNIVERSITIES – A DUTY TO PROTECT?

The second manner in which postsecondary institutions may see their liability extended is through a duty to protect students. Recently in the United States, tort liability of universities has been extended to include a duty to protect students from foreseeable violence during curricular activities. In The Regents of the University of California v SC (Rosen)⁷, the Supreme Court of California overturned the decision of the Court of Appeal of California and held that the duty to protect students exists.

In that case, a student began experiencing auditory hallucinations which made him believe that other students were criticizing him. School administrators were made aware of the situation and attempted to provide mental health treatment to the student. Unfortunately, the student stabbed a fellow student, Katherine Rosen, during a chemistry lab. Ms. Rosen then sued the university and several of its employees for negligence. Her argument centered on the university's failure to protect her from foreseeable violent harm.

The Supreme Court of California considered the "unique features of the college environment" and concluded that post-secondary institutions have "a special relationship with students while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services".⁸ The court, however, did not impose liability on the university in this case but merely held the duty exists. The court remanded to the Court of Appeal to decide whether there were any triable issues of material fact remaining and to determine whether the university would be liable.

This decision follows similar holdings and obiter comments made by courts in other states. The Supreme Judicial Court of Massachusetts held that colleges have a duty to protect their students against criminal attacks. The Supreme Court of Florida discussed that a special relationship may exist between universities and their adult students that warrants a duty to protect. Lastly, the Supreme Court of Delaware held that universities have a duty to regulate and supervise foreseeable dangerous activities occurring on its property including the negligent or intentional activities of third persons.⁹

These decisions have begun broadening the scope of liability of post-secondary institutions in the United States. The decisions establish that universities and colleges must take reasonable steps to prevent violence towards students during curricular events and events occurring on their property. In light of these decisions, Canadian post-secondary institutions should be aware of their potential liability and the potential duty to protect students from foreseeable harm.

WHAT STEWART MCKELVEY CAN DO FOR YOU

With the proposed addition of the New Amendments regarding workplace violence and harassment, it is foreseeable that Canadian educational institutions may begin to see an increase in liability for harm caused to students and staff. It will be important for universities and colleges to ensure they are aware of any potential risks of violence and ensure their policies adequately outline the steps they will take to mitigate this risk. Stewart McKelvey can assist in developing clear policies and guidelines to ensure compliance with the new regulations.

A special thank you to Kathleen Nash, Summer Student, for her assistance with this article.

Footnotes

1. General Regulation – Occupational Health and Safety Act, NB Reg 91-191 [General Regulation].

2. Occupational Health and Safety Act, SNB 1983, c O-0.2 [OHSA].

3. Government of New Brunswick, New Workplace Regulations Will Aim to Prevent Violence and Protect Workers, News Release, 18 October 2017.

4. Government of New Brunswick, Regulations Proposed to Address Workplace Violence and Harassment, News Release, 28 April 2018.

5. Government of New Brunswick, Regulations Proposed to Address Workplace Violence and Harassment, News Release, 28 April 2018.

6. New Brunswick Nurses Union, Speak up – Public Review of Workplace Violence Draft Regulations, 7 May 2018.

7. The Regents of the University of California v SC (Rosen), Case No: S196248 (2018) [Rosen].

8. Ibid, at p 17.

9. All of these cases can be found on pp 18-19 of Rosen, supra note 7.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.