a previous post, we reported on Ontario's new sexual
violence and harassment legislation, Bill 132, An Act to amend
various statutes with respect to sexual violence, sexual
harassment, domestic violence and related matters. On March 8,
2016, Bill 132 received Royal Assent.
To recap, Bill 132 amends various existing statutes with respect
to sexual violence, sexual harassment and domestic violence. For
employers, Bill 132 presents important workplace-related changes,
by amending the Occupational Health and Safety Act (OHSA) to
require employers to implement specific workplace harassment
policies and programs and ensure that incidents and complaints of
workplace harassment are appropriately investigated.
First, Bill 132 expands the OHSA's definition of
"workplace harassment" to include "workplace sexual
harassment", 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;
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
Bill 132, however, also clarifies that a reasonable action taken
by an employer or supervisor relating to the management and
direction of its workplace is not workplace harassment.
The Bill, as passed, requires an employer, in consultation with
a joint health and safety committee or a health and safety
representative (if any), to develop, maintain, and review at least
annually, a written program that implements the employer's
workplace harassment policy. Further, employers must provide
workers with appropriate information and instruction on the
contents of their workplace harassment policies and program. An
employer's written program must set out, among other
measures and 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 alleged
how incidents or complaints of workplace harassment will be
investigated and dealt with;
how information obtained about an incident or complaint of
workplace harassment, including identifying information about any
individuals involved, will not be disclosed unless the disclosure
is necessary for investigating, taking corrective action, or by
how a worker who has allegedly experienced workplace harassment
and the alleged harasser (if s/he is a worker of the employer) will
be informed of the results of the investigation and of corrective
action that has been, or will be, taken.
Further, employers must conduct appropriate investigations in
response to incidents or complaints of workplace harassment.
Following an investigation an employer must inform both the worker
who has allegedly experienced harassment and the alleged harasser
(if s/he is a worker of the employer) of the results and of any
corrective action that has been, or will be, taken.
Notably, an inspector now has the power to order an employer to
conduct an investigation by an impartial third party, and obtain a
written report by that party, all at the employer's expense.
Bill 132, however, does not specify the circumstances in which an
inspector can, or will, order an employer to conduct such an
The above-noted OHSA amendments come into force on September 8,
2016. In order to ensure compliance with the legislation, employers
must take steps beforehand to update and implement policies and
programs related to workplace harassment.
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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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