Bill 132, Sexual Violence and Harassment Action Plan Act
(Supporting Survivors and Challenging Sexual Violence and
Harassment), 2015 (Bill) contemplates amendments to six pieces
of legislation, including Ontario's Occupational Health and
Safety Act (OHSA). The Bill proposes to amend the OHSA to
include a definition of workplace sexual harassment, additional
employer duties with respect to workplace harassment and a new
discretionary power allowing inspectors to order third-party
investigations. Under the proposed Bill, the OHSA amendments would
come into force on the later of (i) July 1, 2016 and (ii) six
months after the day the Bill receives royal assent. The Bill
passed first reading at the Ontario legislature on October 27,
The Bill expands the current OHSA definition of "workplace
harassment" to include "workplace sexual
harassment." Workplace sexual harassment is subsequently
Engaging in a course of vexatious
comment or conduct against a worker in a workplace because of sex,
sexual orientation, gender identity or gender expression, where the
course of comment or conduct is known or ought reasonably to be
known to be unwelcome or
Making a sexual solicitation or
advance where the person making the solicitation or advance is in a
position to confer, grant or deny a benefit or advancement to the
worker and the person knows or ought reasonably to know that the
solicitation or advance is unwelcome.
This definition of workplace sexual harassment is consistent
with the definition of sexual harassment found in the Ontario
Human Rights Code (Code). However, there is nothing in the
current Bill that restricts or limits a worker's right to bring
a human rights complaint under the Code on the basis of sexual
harassment in the workplace.
The Bill also imposes new and/or expanded duties on employers
with respect to workplace harassment programs and investigations.
Among other things, employers will be required to:
Ensure that their workplace
harassment program includes procedures for reporting workplace
harassment to a person other than the employer or supervisor in
cases where the employer or supervisor is the alleged harasser
Inform workers that information
obtained in a workplace harassment complaint will only be disclosed
as necessary to investigate the complaint or take corrective
action, or as required by law
Inform complainants and alleged
harassers in writing of the results of an investigation and any
corrective action that will be taken
Review workplace harassment programs
as often as necessary but at least annually
Provide workers with information and
instruction on the contents of the workplace harassment policy and
In order to protect confidentiality, the Bill expressly confirms
that any report prepared in the course of or for the purposes of a
workplace harassment investigation is not a report "respecting
occupational health and safety." This is intended to negate
the requirement that could otherwise arise under the OHSA for such
reports to be provided to workers, the workplace health and safety
committee, or health and safety representatives.
Lastly, the Bill vests OHSA inspectors with the discretionary
power to order an employer to hire an impartial person to carry out
a workplace harassment investigation and prepare a report. These
investigations and reports, if ordered by the inspector, must be
paid for by the employer. It unclear at this time if/how
"impartial" will be defined, what factors will guide an
inspector to order such an investigation and what knowledge,
experience or qualifications will be required of the investigators.
We will continue to monitor the progression of this Bill and any
policy guidance or direction that the Ministry of Labour might
provide on this issue.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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