Most important for employers are the amendments to the
Occupational Health and Safety Act ("OHSA")
which bolster protections from workplace harassment. Bill 132
proposes to amend the OHSA definition of "workplace
harassment"to include "workplace sexual harassment"
which is defined as:
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.1
In addition, Bill 132 proposes to add a caveat to the OHSA to
clarify that reasonable action taken by an employer or supervisor
relating to the management and direction of employees is not
Further, Bill 132 proposes the imposition of statutory duties
upon employers to protect employees from workplace harassment,
investigating incidents and
complaints of workplace harassment;
informing the parties to a workplace
harassment complaint of the results of the investigation and any
corrective action that will occur;
developing programs and procedures
for employees, which will be reviewed annually, regarding workplace
the reporting of incidents;
the investigation process;
how the investigation information
will be kept confidential, except for the purposes of taking
corrective action or required by law; and
training under the programs and
Unlike other workplace investigations under the OHSA, the
results of a workplace harassment investigation will not have to be
shared with the Joint Health and Safety Committee.
Bill 132 also seeks to broaden the powers of Ministry of Labour
inspectors and proposes to allow inspectors to require an employer
to conduct an impartial investigation into workplace harassment, at
the employer's own expense.
While we have summarized the key employment law changes, it is
also important to note that Bill 132 also seeks to (i) require
public and private colleges and universities to implement sexual
violence policies and procedures; (ii) allow victims of sexual
assault or domestic violence to terminate a lease early; and (iii)
remove the limitation period for (a) proceedings based on sexual
assault and (b) applications for victim compensation for survivors
of sexual assault and domestic violence.
We will continue to provide updates as Bill 132 progresses
through the Legislature. In the interim, if you have any questions
regarding the proposed changes, please contact our Labour and
1 These definitions are similar to what is currently
found in the Human Rights Code (Ontario).
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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