Business LawBusiness Law Group e-COMMUNIQUÉ - July 2010Published: 07/20/2010 By Laurie Jessome, Bruce McNeely, Luke Woolford In This Issue
Workplace Violence and Harassment Laws - What Employers Need to KnowBy Laurie Jessome, Luke Woolford Many employers will be aware that Ontario recently made significant amendments to its Occupational Health and Safety Act (OHSA) relating to workplace violence and harassment. However, what may be less widely known is that the new amendments (which came into force on June 15, 2010) do not simply vary the treatment of incidents of workplace violence and harassment, but also impose positive ongoing duties on employers to conduct risk assessments and enact policies and programs to prevent incidents of workplace violence. Non-compliance with these duties can lead to fines for employers of up to $500,000 or up to 23 months in jail for individuals. Defining the Problem
What Must Employers Do? Policy Development Employers must develop policies (or revise existing policies) with respect to workplace harassment and violence. These policies must be placed in a conspicuous place in the workplace, and must be reviewed and, as required, updated by the employer no less than annually. Risk Assessment Employers must complete a risk assessment of their work environments for workplace violence. This assessment must consider what violence might arise, having regard to the nature of the workplace, the type of work performed, or the physical environment in which the workers operate. It must factor in circumstances that would be common to similar workplaces and those that are specific to the employer's workplace in particular. Employers must provide the results of the assessment to their joint health and safety committee or to a health and safety representative (or if there is no committee or health and safety representative, they must advise the workers of the results of the assessment). Employers must reassess the risk of violence on an ongoing basis. Implementation of Workplace Violence and Harassment Programs
Following development of the policies, employers must implement the policies by developing and maintaining workplace violence and harassment programs.
The programs must include measures and procedures for workers to report incidents of workplace violence or harassment to the employer or supervisor and must set out how the employer will investigate and deal with incidents and complaints of workplace violence harassment. In addition, workplace violence programs must include measures and procedures to control the risks identified in the workplace assessment and for summoning immediate assistance when workplace violence occurs or is likely to occur.
Other Requirements
The amendments to OHSA also stipulate that employers who become aware, or who ought reasonably to be aware, of a risk of an incident of domestic violence in the workplace must take every reasonable precaution for the protection of its workers in those circumstances. Such precautions may include increased security measures, changing passcodes or other access requirements and creating a “buddy system” for affected workers as they walk to their cars or wait for public transit.
Employers have a duty to provide each employee with information and instruction regarding the workplace violence and harassment policies. In addition, employers now have an obligation to advise their workers of any risk of workplace violence arising from a person in the workplace who has a history of violent behaviour. It should be noted that employers must be mindful of their obligations regarding privacy in the workplace and their duties under the Ontario Human Rights Code when assessing whether or not such disclosure is required under OHSA. For this reason, we recommend consulting with legal counsel before disclosing personal information regarding employees, contractors, clients or other individuals in your workplace.
Demand Obligations Under Ontario Limitations Law – Some Demand Obligations Are Better than OthersEffective January 1, 2004, Ontario overhauled its general limitations law by enacting the Limitations Act, 2002 ("OLA"). Ontario has since amended the OLA to address certain perceived shortcomings (described below). The selection by Ontario of two years as the basic limitation period (applicable in most circumstances) may leave persons with claims against third parties too little time to assess their rights and engage counsel to initiate court proceedings before their claims will be statute-barred. The basic 2-year limitation period for contracts governed by the law of Ontario begins to run on the date on which a person is (a) aware that she or he has a claim, (b) aware that she or he has suffered damages and (c) can identify the person who caused the damage ("Claim Triggers"). The test is whether the claimant actually knew, or in the circumstances, a reasonable person would have known, that each of the Claim Triggers had been met. As first enacted, the OLA did not permit contracting parties to agree to suspend the running of the basic 2-year limitation period. However, effective October 26, 2006, the OLA was amended to permit parties to a business agreement to suspend the running of the basic limitation period. Such tolling arrangements are not effective retroactively. Demand obligations give rise to special concerns under the OLA. In the context of demand promissory notes, the Ontario Court of Appeal decision in Hare v. Hare (post-January 2004) confirmed that all the Claim Triggers for demand promissory notes are met on the day on which the demand note is first signed and delivered, not when demand was made under it. To address the obvious concerns raised by the foregoing, Ontario amended the OLA (effective retroactively to January 1, 2004) to the effect that the limitation period begins to run for demand obligations governed by Ontario law on the day on which demand is made. Although this OLA amendment cured the issue regarding demand obligations arising from and after January 1, 2004, it was silent on demand obligations which arose on or prior to December 31, 2003. A debt obligation can be confirmed in writing, and by doing so, the limitation period is restarted. A confirmation must be made in writing prior to the running of the then applicable limitation period. The right to sue to enforce an obligation cannot be revived once an applicable limitation period has expired. Demand promissory notes are commonly used for tax planning purposes. If the right to enforce payment under such a promissory note becomes statute barred, then the debt may be treated from a tax perspective as having been forgiven by the creditor. Debt forgiveness can have significant adverse tax results. Contrary to the hopes of many, the November 2009 Ontario Court of Appeal decision in Bank of Nova Scotia v. Williamson regarding demand guarantee obligations (discussed below) does not change the common law regarding when the Claim Triggers are met for demand promissory notes. The decision in Hare v Hare regarding demand promissory notes was confirmed in the Williamson decision. In the context of guarantees which are “payable on demand”, the Williamson decision establishes that the Claim Triggers for guarantees that are payable on demand are not met until demand is made by the beneficiary against the guarantor. Notice to the guarantor of enforcement against the principal debtor is not, in itself, a demand for payment under a guarantee. The guarantee remains enforceable, even if collection under the principal debt is statute-barred. It would appear that the only possible bar to recovery under the demand guarantee is the ultimate OLA 15-year limitation period which begins to run the moment the guarantee is signed. As long as the beneficiary makes demand against the guarantor prior to the end of the 15-year period following the execution and delivery of the guarantee, the right to make a claim against the guarantor is not statute-barred. It would obviously be prudent for a guarantor to attempt to impose a reasonable period during which the beneficiary must make demand such as 2 years following the earlier of (a) default by the principal debtor under the guaranteed obligation and (b) demand by the beneficiary against the principal debtor. Beneficiaries should avoid guarantees which automatically become due upon default by the guarantor. Consumer Product Safety – New Bill for a New Regulatory Regime in CanadaBy Bruce McNeely, Luke Woolford In 2009, the Government of Canada introduced Bill C-6, the first version of the Canada Consumer Product Safety Act. The Senate amended Bill C-6, but Parliament was progrogued without passing the Senate amendments and the bill died. A copy of our analysis of the government’s version of Bill C-6 published on October 16, 2009 is available by clicking here. In June, 2010, the federal government introduced a second version of the Canada Consumer Product Safety Act, Bill C-36. Ministerial Power and Accountability
There is only one significant difference between Bill C-36 and its predecessor, Bill C-6, but it is an important one. Bill C-36 removes the power of inspectors appointed under the legislation to issue orders requiring manufacturers, importers or sellers of consumer products to recall product that the inspector has reasonable grounds to believe poses a danger to human health and safety. Under section Bill C-36 such power now resides solely with the Minister of Health. In addition to the power to order consumer product recalls, the Minister (and not an inspector) now has the authority to issue an order to stop the manufacture, importation or sale of a consumer product that the Minister has reasonable grounds to believe poses a danger to human health and safety. As a result, the Minister (and not an inspector) has the power to close a manufacturing, importation or distribution business operating in Canada.
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