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LEGAL REPORT: OCCUPATIONAL HEALTH & SAFET Y In addition, Ontario employers with five or more employees must have a violence assessment in place by June 15, 2010, taking into account domestic violence occurring in the workplace. Nowhere, however, not in the legisla- tion, the Ministry of Labour web site, communications to employers, regula- tions — not anticipated as part of this bill — does it define "reasonable," or how employers codify "reasonable" in a violence assessment. "The bill has presented a situation that is so unregulated, undefined that it appears that it has been introduced to prosecute employers, rather than reduce the risk of domestic violence in the workplace, which was what everyone was told what its aim was," says Ella L.J. Bernhard, a family law lawyer who is certified to sit as an arbitrator and pro- vide screening for domestic violence in Ontario. The Ministry of Labour needs to provide the tools for employers and health and safety committees, and that is where Bill 168 fails, she adds. Bernhard calls the bill a "hornet's nest" and suggests a cottage industry will surface to help employers under- stand domestic violence and create risk assessments. If another incident like that at Hôtel-Dieu Grace Hospital occurred, it would be up to ministry inspectors and likely the courts to decide whether an employer did enough, or reasonably enough, to prevent the incident, say lawyers who have reviewed the bill. Stiff penalties may follow if an employer fails to take reasonable precautions to protect employees. Lack of direction is not the only fail- ing of Bill 168, suggests Norm Keith, a partner at Gowling Lafleur Henderson LLP. He says the requirement for an employer to take every reasonable pre- caution to protect employees already existed in legislation. "There is an argu- ment intellectually that they actually have done nothing that wasn't already there." So why would the government, already having the protections in law, decide to write a 44-word provision in legislation, using the word "reasonable" twice, with no guidance for employ- ers, and requiring employers to codify the rule in a risk assessment? "This is a sop to the Lori Dupont inquest and the health-care sector, this is not a meaningful change in the law, they are throwing them a bone just because there was a coroner's inquest that required the government to do something," says Keith. "Government has no idea what employers should do, they have no idea what general direction they should require all employers to follow in the circumstance. "So what do you do? The act doesn't say, it just says you have got to prevent it. That is about as helpful as in the Criminal Code saying 'don't commit crime.' Oh, OK, sure that'll make the world a better place." Canadian Lawyer requested an inter- view with Ontario Labour Minister Peter Fonseca on Bill 168, but no inter- view could be arranged. Commentators on Bill 168 admit Human Resources Guide to Preventing Workplace Violence Second Edition Includes detailed analysis of Ontario's new violence prevention law, Bill 168 and a new chapter on Violence Prevention in the Health Care Sector Get the most up-to-date information, guidance, and direction on Bill 168, ORDER your copy today Perfectbound • Approx. 240 pp. February 2010 • $79 P/C 0969010002 ISBN 978-0-88804-490-7 with respect to violence and harassment in the workplace. Bill 168 has been passed into law and for the first time, every employer in Ontario will have a positive duty to prevent and manage workplace violence and harassment. Learn the tools to create a comprehensive violence prevention program that systematically manages the problem of workplace violence and harassment, protects your business from legal liability, and safeguards your workers from harm. the domestic violence provision is laudable. But does it really protect the safety of workers, and if it was created simply as a "sop" to mollify the health- care sector are the nurses happy with the legislation? "No, not quite," says Colin Johnston, a litigation team leader with the Ontario Nurses' Association. "One of the concerns we have is that it doesn't go far enough. If you look at the bill, it makes reference to workplace harassment and workplace violence, it creates the obligation to put policies in place with respect to both, but in terms of an enforcement mechanism, I mean in terms of a ministry officer coming in and issuing an order against an employ- er, it is only the more narrow workplace violence that the ministry can issue an order, not workplace harassment." Johnston says nurses are already For a 30-day, no-risk evaluation call: 1.800.565.6967 CL0310 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Keith_HRG Preventing Workplace Violence 2E (CL 1-3sq).indd 1 56 M ARCH 2010 www. C ANADIAN Law ye rmag.com working with hospital administration when they identify a situation with members. He says part of the issue is that there needs to be an onus not only on the employer, but also on the employee who is having the issue to come forward. When that has hap- pened, they have been able to create 2/10/10 11:17:51 AM Norm Keith and Goldie Bassi Act An Act to Amend the Occupational Health and Safety