Employers in Ontario need to be aware of the continued evolution
and expansion of their obligations relating to harassment in the
workplace. The issues of sexual harassment and violence are high on
the Ontario Government's agenda. In March 2015, the Ontario
Government released its report entitled, "It's Never
Okay: An Action Plan to Stop Sexual Violence and
Harassment". In October 2015, the Government introduced
Bill 132 as a legislative response to its report.
Bill 132, the Sexual Violence and Harassment Action Plan Act
(Supporting Survivors and Challenging Sexual Violence and
Harassment), 2015, proposes to expand employer obligations
regarding workplace sexual harassment. Bill 132 expands on the
changes implemented in Bill 168 to the Occupational Health and
Safety Act ("OHSA"). As readers will recall, Bill
168 came into force five years ago and required employers to draft
workplace violence and harassment policies/procedures, provide
training to employees about the harassment policies and investigate
complaints, among other things.
Bill 132 proposes further changes to OHSA which expand an
employer's obligation regarding sexual harassment in the
workplace. These changes include:
1) Definition of Workplace Sexual Harassment
The definition of "workplace harassment" in OHSA would
be revised to include a definition of "workplace sexual
harassment", which would be 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
person knows or ought reasonably know that the comment or conduct
is 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 know that the
solicitation or advance is unwelcome.
2) Expansion of Workplace Harassment Policies/Programs
Bill 132 expands the obligations outlined in Bill 168 to require
a workplace harassment program that specifies:
procedures for workers to report
incidents of workplace harassment to a person other than the
employer or supervisor, if the employer or supervisor is the
how complaints will be investigated
and dealt with;
that information obtained about an
incident or complaint of workplace harassment will not be disclosed
unless the disclosure is necessary for the investigation or
corrective action; and,
how a victim and alleged harasser
will be informed of the results of the investigation.
3) New Duties Added to OHSA
Bill 132 imposes statutory duties on employers which
differentiates the proposed legislation from Bill 168. These duties
under OHSA would require that: an investigation is conducted into
complaints of sexual harassment; the victim and alleged harasser be
informed in writing of the results of the investigation; and, that
the workplace harassment program be revised annually.
Also of note, Bill 132 would provide additional powers to the
Ministry of Labour ("MOL"). Specifically, MOL inspectors
would be able to order an employer to investigate a workplace
harassment incident and to hire an impartial party to investigate
the incident at the employer's sole expense. This authority
provides significant discretion to an MOL inspector and would
result in the employer losing control over the investigation
Bill 132 has only passed first reading and as such, is in the
early stages of the legislative process. The current proposed date
for the changes coming into force is July 1, 2016. We will continue
to update you on the progress of this legislation in the coming
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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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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