Five Years Under the Federal Harassment and Violence Regime: An Investigator's Perspective

Date: October 1, 2026

Almost six years ago, the federal government made amendments to the Canada Labour Code (the “CLC”) and introduced the Work Place Harassment and Violence Prevention Regulations, SOR/2020-130 (the “Regulations”), creating new requirements for responding to and investigating allegations of workplace harassment and violence in federally regulated workplaces.

In the years since these changes came into force, federal employers, investigators, and other practitioners have received limited guidance on how certain provisions of the CLC and Regulations should be interpreted and applied. In the absence of meaningful jurisprudence, situations can arise in practice where strict adherence to the legislation may produce impractical outcomes, detract from legitimate operational needs of the employer, or appear inconsistent with principles of fair, reasonable, and proportionate investigations.

Although the CLC and Regulations emphasize the importance of retaining qualified investigators, employers have limited ability to rely on the expertise of counsel or investigators when determining whether a complaint should proceed as a harassment investigation or be addressed through a more appropriate process.

For example, when Sections 18, 23, and 25 of the Regulations are read together, along with the Work Place Harassment and Violence Prevention (HVP) - 943-1-IPG-104, it appears that an employer cannot terminate the process or address the allegations under a more appropriate framework without the consent of the principal party. As a result, employers may be required to conduct a harassment investigation even where the allegations appear better suited to another policy, procedure, or legal framework.

For example, I have been instructed to assess whether allegations concerning conflicts of interest, performance management issues, or historical interpersonal disputes constitute harassment or violence within the meaning of the legislation. Under many provincial frameworks, such concerns might be addressed through a preliminary assessment to determine whether a harassment investigation is the appropriate mechanism.

Compliance with the Regulations may also create a tension with workplace safety obligations. While the legislation can require an employer to proceed with a harassment investigation despite concerns about its appropriateness, the process must generally end if the principal party chooses not to continue. Unlike under many provincial regimes, an employer may be unable to continue the investigation without the principal party's participation, even where there are legitimate concerns regarding workplace health and safety or employee misconduct.

Moreover, initiating a separate investigation under another policy or legislative framework may create a risk that the employer will be found not to have complied with the Regulations.

Last, as many employment lawyers observed when the amendments were first introduced, the definition of harassment is somewhat ambiguous and can be difficult to apply. The CLC defines harassment and violence as "any action, conduct or comment" that can reasonably be expected to cause offence, humiliation, or physical or psychological injury or illness to an employee. Read together with the Regulations, this language suggests that a single incident may constitute harassment, regardless of its severity.

Under many provincial harassment frameworks, absent a sufficiently serious incident, harassment generally requires a pattern or course of conduct. While the federal definition is qualified by the requirement that any single act be reasonably expected to cause offence, humiliation, or physical or psychological injury or illness, that qualification does not fully resolve the uncertainty for practitioners. In practice, investigators are often required to draw difficult distinctions between single incidents of workplace conflict, inappropriate workplace conduct, or poor management practices, and conduct that rises to the level of statutory harassment or violence.

Takeaways

Nearly six years after the federal harassment and violence regime came into force, significant uncertainty remains regarding the interpretation and practical application of key provisions of the CLC and Regulations. Until greater guidance emerges from the courts and administrative decisionmakers, federally regulated employers should continue to exercise caution when assessing allegations of harassment and violence under the CLC and Regulations.

If you have any questions about how this Insight may apply to your organization, or if you would like to discuss a complaint or a complaint policy, please contact Becky at becky@langillelittle.ca.