Nova Scotia’s government is formally recognizing workplace harassment as a health and safety issue with the introduction of new regulations to its Occupational Health and Safety Act.
“All employers in Nova Scotia have an obligation to ensure workers’ health and safety — and that obligation now specifically includes a duty to address workplace harassment and to establish and implement a workplace harassment prevention policy,” says Mark Tector, a labour and employment lawyer in Stewart McKelvey’s Halifax office.
Read: Nova Scotia tackling rise in psychological injuries with new workplace harassment legislation
The definition of workplace harassment includes unwelcome conduct, comments, actions, bullying based on personal characteristics and inappropriate sexual conduct. It excludes employers’ action relating to the management and direction of employees in the workplace.
While the regulations certainly resemble what’s in place in Ontario and Alberta, there are differences.
In Ontario, for example, liability attaches when conduct is “known or ought reasonably be known to be unwelcome.” In Alberta, the wording is “knows or ought reasonably to know will or would cause offence or humiliation.” These definitions, which cover negligent, reckless, and oblivious behaviour as well as intentional behaviour, nonetheless have an objective component imparted by the word “reasonably.”
The Nova Scotia definition, however, embraces conduct “whether intended or not,” suggesting it’s the impact on the victim, rather than the intent of the harasser, that matters.
Read: Psychological safety, DEI rising considerations in workplace mental-health support
But Tector believes the courts will impose some element of objectivity into the definition.
“I don’t believe the analysis will depend entirely on how someone reacts to the conduct. I hope and believe that decision makers consider such things as cultural differences, where someone from one culture says something that’s not offensive in their culture, but may be offensive in others.”
The Nova Scotia definition also speaks to “a single significant occurrence or repeated objectionable conduct.” This differs from Ontario, where the definition refers to “a course of vexatious conduct,” and Alberta, which addresses “any single incident or repeated incidents of objectionable or unwelcome conduct.”
Regarding the formulation of a workplace harassment prevention policy, its key components include a commitment that no employee will be subjected to harassment and a statement that employees are entitled to employment free of harassment and that all employees have an obligation to refrain from harassment.
It also establishes clear procedures on how to recognize, prevent and respond to harassment, including reporting incidents, making and investigating a complaint as well as informing the subject of the complaint and the complainant of the investigation’s results. Employers aren’t required to reveal any information related to a complaint unless necessary. They’re also prevented from seeking reprisal against an employee who makes a compliant in good faith.
The legislation also requires employers to provide training on their policies and review and update their policies every three years.
The Nova Scotia government has published a guide for employers on harassment in the workplace, including a sample harassment prevention policy. “The release of these regulations presents an opportunity to educate as well as to penalize,” Tector says.
He adds it’s too early to tell how onerous the new obligations will be for employers. “Everyone’s watching to see how tribunals and courts apply and interpret these regulations.”