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How are employers affected by Alberta’s increased protections against sexual and domestic violence?

sexual and domestic violenceIn an attempt to make the legal system more accessible to victims of sexual and domestic violence, on May 4, 2017, the Alberta legislature passed Bill 2: An Act to Remove Barriers for Survivors of Sexual and Domestic Violence (“Bill 2”). This legislation effectively removes limitation periods for claims related to sexual or domestic misconduct. This is a significant amendment, as prior to the enactment of Bill 2, section 3 of The Limitations Act set the limitation period for personal injury claims at 2 years after the date on which the claimant first knew, or ought to have known that the injury occurred.

Choosing to bring an action for sexual or domestic violence is a personal and often difficult decision, by removing time restrictions, victims do not have to face the added pressure of a “now or never” mentality.

Bill 2 has added section 3.1 to The Limitation Act, which removes the limitation period for the following:

  • claims of sexual assault and battery;
  • claims of sexual misconduct involving minors, intimate relationships, dependents, or disabled persons; and
  • claims of non-sexual assault involving minors, intimate relationships, dependents, or disabled persons.

According to Justice Minister Kathleen Ganley, the language of the new bill has intentionally been left broad, resulting in Alberta having the most inclusive language of any province.1

In addition, section 3.1(2) informs that section 3.1(1) applies retroactively to claims irrespective of whether the misconduct occurred before these amendments came into effect. In other words, claims years, or even decades, back may now be brought to the surface.

What does this mean for employers?

In relation to employment law, the enactment of Bill 2 has important legal implications for employers. Due to the removal of sexual and domestic violence limitation periods, we may see an increase in workplace complaints regarding sexual harassment, assault, and/or discrimination.

If wrongful conduct occurs in the course of employment, at the place of employment, through a workplace relationship, or by an employee of authority, the employer may be vicariously liable. As determined by the Supreme Court of Canada in Bazley v Curry, (1999) 2 SCR 534 employers are liable for employees’ wrongful conduct if the conduct is sufficiently connected to conduct authorized by the employer.

Since employers may be vicariously liable for the actions of their employees, removing time restrictions on claims may leave employers vulnerable to suits that otherwise would have expired. These actions may arise years after their occurrence, potentially including claims against former employees, and even claims that occurred under different corporate structuring.

Issues for employers to consider moving forward

As of June 1st, 2018, The Occupational Health and Safety Act (OHS Act), has been amended, placing added duties on employers to investigate, create policies, and train employees in the event of allegations of sexual assault or harassment. Employers will be required to ensure that employees do not participate in, or fall victim to, workplace violence or harassment. Additionally, if employers do not sufficiently complete internal investigations in the event of allegations they may be held liable.

Based on recent changes, employers are facing increased liability for the actions of their employees. This increased liability leaves employers in an interesting place where they may be left wondering how to best protect themselves. One option that employers have to mitigate potential liability is to enforce stricter internal sexual harassment policies and adopt thorough procedures for dealing with allegations.

In protecting themselves against future liability, employers may find themselves stepping in line with the government, paving the way towards creating safe and respectful work environments within which employees’ conduct is held to a higher standard.

By Dana Schindelka and Gillian Broadbent (Summer Student), DLA Piper

[1] Alberta Hansard, March 22, 2017, at 465.

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