After adopting an action plan to stop sexual violence and
harassment in March 2015, Ontario's legislature is taking steps
to pass an act that would create new duties for employers to
prevent and investigate sexual harassment in the workplace. If
passed, the act would go into effect six months after it is
The act, titled the Sexual Violence and Harassment Action Plan
Act (the "Act"), amends Ontario's Occupational Health
and Safety Act to create new affirmative duties for employers to
prevent workplace sexual violence and harassment. The Act would
expand employers' duties to:
Have a workplace harassment policy or program that includes and
defines workplace sexual harassment;
Have measures and procedures that allow employees to report
incidents of workplace harassment to a person other than their
supervisor, if the supervisor is the harasser;
Investigate the alleged harassment;
Keep the incident or complaint of harassment confidential
unless necessary for the purposes of the investigation or
Inform the complainant and respondent of the results of the
Take corrective measures in light of the investigation;
Comply with Occupational Health and Safety inspectors'
requests for an investigation or a report at the employer's
The Act also provides that reasonable actions taken by an
employer or supervisor relating to management of employees does not
constitute workplace harassment. In addition to the workplace
requirements, the Act includes proposed amendments to curb sexual
violence and harassment in universities, colleges, and housing.
Employers operating in both New York and Ontario may recall a
group of laws similar to the Act that went into effect in New York
earlier this year. The laws, as part of the Women's Equality
Agenda (which you can read more about
here) broadened the definition of employer for sexual
harassment claims, and, like Ontario's act, included stronger
protections from housing discrimination for victims of domestic
violence. However, the Act differs importantly from New York law as
it creates an affirmative duty for employers to adopt and enforce
sexual harassment policies and investigate complaints, which is not
required by either New York or United States federal law (although
all employers should have such policies in place).
The Act currently is being considered by the Social Policy
committee of Ontario's legislature. Employers operating in
Ontario should be aware that these new requirements may be just
around the corner, and should review their policies to ensure that
they are in compliance and reach out to counsel with any
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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