Forthcoming amendments to the Canada Labour Code (the “Code”) reflected in Bill C-65 include provisions that, on their face, seem designed to protect the privacy of a party advancing workplace harassment complaints. The policy objectives behind these amendments align with recent developments in trauma-informed complaints processes. It is well established that victims of workplace harassment and violence frequently undergo further trauma during the complaint process. At the same time, the new provisions raise challenging questions for investigators about how to conduct appropriate trauma informed processes that maintain procedural fairness and are therefore legally sustainable. This article discusses this balance.
Protection of Privacy under Bill C-65
Bill C-65 amends the Code and its regulations to mandate that all federally regulated employers take a more preventative and proactive approach to workplace harassment and violence. Parliament has signaled that Bill C-65 will come into force sometime in 2020, though a specific date has not been set.1
The key provisions are sections 20.9(3) and 20.9(5)(b) of the Canada Occupational Health and Safety Regulations (the “COHSR”). These provisions require the employer to obtain consent from the “persons involved” before disclosing any identifying information to the competent person or the Workplace Safety and Health Committee or representative (the “consent requirement”). “Persons involved” is defined as including the complainant, respondent, and witnesses who have provided information to either the employer or the competent person.
The Federal Government’s template consent form contains a clause putting the person involved on notice that withholding consent does not guarantee that their identity may not become known to other individuals through the process.
It is the employer’s responsibility to determine if the disclosure of any information is prohibited by law, when providing the information to the competent person under section 20.9(3) or to the Workplace Health and Safety Committee under section 20.9(5)(b).2
Procedural Fairness
On the surface, there seems to be a tension between the consent requirement and accepted approaches to the duty of fairness in an investigation.
In a procedurally fair and robust investigation, a respondent facing a complaint is entitled to particulars of the allegations against them. What this generally means is that the respondent is given sufficient particulars to submit a written response and participate meaningfully in an interview process. These particulars must include enough detail so that a respondent can respond fully and completely, such as the dates and times of the alleged misconduct.3
Takeaway
The new privacy protections for complainants dictate that investigators should try to obtain consent before sharing parties’ identifying information. Where that is not possible or practical, investigators should attempt to reduce the scope of disclosure, and avoid disclosing identifying information where it is unnecessary to do so. Investigators should therefore think about how they will balance these competing duties in every investigation, and be attuned to the unique facts, relationships, and concerns of the case under investigation. In the end the investigator’s good judgment becomes a necessity when balancing what may become competing considerations in a proper trauma-informed investigation.
1 – For more information on Bill C-65 please see the article Bill C-65: What Federally Regulated Employers need to know about the new requirements for workplace harassment & violence. 2 – This article does not deal with a scenario where disclosure is either required or prohibited by law. This is a separate topic. 3 – See for example Greater Toronto Airports Authority (“GTAA”) v. Public Service Alliance Canada, Local 0004, [2010] C.L.A.D. 127, and Marchand v. The Regional Occupational Centre Society, 2011 NSLST 29.