On October 27, 2015, Bill 132, the Sexual Violence and
Harassment Action Plan Act (Supporting Survivors and
Challenging Sexual Violence and Harassment), 2015
passed first reading before the Ontario legislature.
Bill 132 is an omnibus bill that proposes to amend six Ontario
statutes, including the Occupational Health and Safety Act
(OHSA).1 If passed, Bill 132 will deliver on
commitments under the Ontario Government's action plan to stop
sexual violence and harassment announced March 6,
The proposed amendments to the OHSA are of
particular interest to employers. They build on the changes made to
the OHSA in 2010 under Bill 168 which imposed employer
responsibilities related to addressing and preventing workplace
violence and harassment. A definition of "workplace sexual
harassment", similar to that contained in the Human Rights
Code prohibiting harassment because of sex, sexual
orientation, gender identity or gender expression, will now be
included in the definition of workplace harassment.
In addition, Bill 132 proposes to notably enhance the importance
of workplace investigations by adding a number of specific employer
obligations in conducting and following through with investigations
into workplace harassment (including workplace sexual harassment).
These include informing the alleged victim and harasser in writing
of the results of the investigation and of any corrective action
that has been or will be taken as a result of the
Most critically, OHSA inspectors will be empowered to
order an employer to retain an impartial third party at the
employer's expense to conduct an investigation into an alleged
incident of workplace harassment. It is unclear under what
circumstances this may occur.
What this means for Employers
The proposed OHSA changes mean that employers will need
to be vigilant in addressing workplace harassment. It is noteworthy
that the proposed amendments identify both "incidents"
and "complaints". An employer should be aware of its
obligations not only when a worker complains, but when the employer
otherwise becomes aware of incidents of possible harassment.
Training will be a critical element in ensuring that internal
investigators understand the law, how to conduct a proper
investigation, draw conclusions from the factual findings, write a
report and communicate to the alleged victim and harasser. An
employer should want to control the investigation process and
otherwise refer the matter to a third party only if it feels it is
ill-equipped to investigate the matter itself.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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