Canada: No Room Left For Doubt: Ontario Introduces New Workplace Harassment Obligations

Last Updated: April 7 2016
Article by Jessica Young

Workplace harassment has been at the forefront of labour and employment law over the past several years, particularly in relation to the employer's duty to investigate. The trend continues with the Ontario Government's recent introduction of Bill 132, the Sexual Violence and Harassment Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. Bill 132 amends various pieces of legislation including the workplace harassment provisions of the Occupational Health and Safety Act ("OHSA").

Bill 132 fills in the gaps left by its predecessor, Bill 168. The existing workplace harassment provisions of the OHSA were a result of the Bill 168 amendments in 2010. Most of the Bill 168 requirements pertained to workplace violence. Although Bill 168 also imposed some requirements with respect to workplace harassment, these were much more limited in scope. Bill 168 required employers to put in place policies with respect to workplace harassment that include measures for reporting and investigating complaints, as well as training for employees. Although Bill 168 required that a policy and procedure be put in place, it did not dictate the content of the workplace harassment policies or procedures nor did it impose any duties in relation to workplace harassment.

The Ontario Labour Relations Board (the "Labour Board") and labour arbitrators grappled with the deficiencies in the Bill 168 workplace harassment provisions. The early Labour Board decisions interpreted these provisions very narrowly, finding that the OHSA requirements were purely procedural, i.e. to create and implement workplace harassment policies and procedures. The Labour Board rejected complaints by employees alleging reprisal for bringing forward a workplace harassment allegation on this basis. However, the case law developed, and the Labour Board reasoned that if employers are required to put in place workplace harassment policies and procedures, they must also be prohibited from retaliating against an employee who lodges a complaint. To hold otherwise would undermine the creation and implementation of the policy.

Bill 132 imposes a positive duty on employers to investigate allegations of workplace harassment. It also dictates what an employer must include in workplace harassment investigation procedures. This will have implications for employers in relation to the content of their policies and how workplace investigations are carried out. These changes effectively enshrine the thrust of more recent case law, explicitly setting the standard that an employer must meet in order to avoid liability associated with a faulty investigation.

Bill 132 Amendments

Definition of Workplace Harassment

The pre-existing definition of workplace harassment in the OHSA is broad. It defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome."

Although this definition does not explicitly mention sexual harassment, it is broad enough to encompass sexual harassment. Nevertheless, Bill 132 has amended the definition of workplace harassment to explicitly include sexual harassment. It adds a fulsome definition of workplace sexual harassment, as follows:

(a) 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

(b) 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.

Employers already have duties with respect to sexual harassment in the workplace under the Human Rights Code, including the duty to investigate allegations of workplace sexual harassment. As explained in more depth below, Bill 132 now imposes a similar duty to investigate under the OHSA. Particularly in relation to section 50 reprisal complaints, this could lead to duplicative litigation, i.e. an employee filing a human rights application and a section 50 reprisal complaint under the OHSA. It will be interesting to see how this issue is treated by the Labour Board and the Human Rights Tribunal.

Bill 132 also seeks to clarify what is not workplace harassment, i.e. reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace. Although this is nothing new, the fact that it has been included in the definition suggests some recognition of a growing problem faced by many employers, which is the rise of harassment allegations in relation to legitimate exercise of managerial authority.

Consultation with Joint Health and Safety Committee

Bill 132 requires that employers consult with the joint health and safety committee or a health and safety representative, on the development and maintenance of a written program to implement the workplace harassment policy. Previously, no such consultation was required.

Workplace Harassment Investigation Procedures

As we mentioned above, the pre-existing workplace harassment provisions in the OHSA do not specify what procedural steps must be included in a workplace harassment investigation policy. Bill 132 imposes specific requirements on employers with respect to workplace harassment investigation procedures. These include:

(a) providing 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 harasser,

(b) setting out 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 the purpose of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law,

(c) setting out how a worker who is allegedly experiencing workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.

Duties re Workplace Harassment

Bill 168 imposed duties on employers and supervisors in relation to workplace violence, including the general duty to take every reasonable precaution in the circumstances for the protection of a worker. However, it did not impose a similar duty in relation to workplace harassment.

Bill 132 includes new duties in relation to workplace harassment. It imposes a duty to ensure that incidents and complaints of workplace harassment are investigated, and to follow certain procedural steps as outlined below. However, it does not go so far as to impose a general duty to take every reasonable precaution in the circumstances to protect a worker from harassment.

Bill 132 provides that in order to protect a worker from workplace harassment, an employer shall ensure that:

(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances,

(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation,

(c) the workplace harassment program is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment required under the OHSA.

As outlined above, employers now have a duty under the OHSA to conduct an investigation into workplace harassment allegations as is "appropriate in the circumstances". This means that when a workplace harassment complaint is received, employers should assess the seriousness of the allegations and determine what type of investigation is appropriate. Such an assessment should take into consideration, for instance, whether a formal investigation is required in the circumstances and if it is an appropriate case to hire an external investigator. However, as discussed below, OHSA inspectors will have the independent power to order the appointment of an impartial investigator.

Powers of Inspectors

Bill 132 provides new powers for OHSA inspectors to order an employer to retain an "impartial person" to conduct an investigation into allegations of workplace harassment. The selection of the investigator will be made by the employer. However, the inspector can impose certain criteria related to knowledge, experience or qualifications of the investigator selected. The employer must retain the investigator at the employer's expense. This means that an inspector could order an employer to hire a third party investigator to conduct an investigation into workplace harassment allegations.

"Impartial person" is not necessarily synonymous with "impartial third party." Thus, we anticipate that inspectors will have discretion whether to expressly require that the investigator be a third party. Time will tell whether that discretion will be treated with deference, or subject to challenge on the basis that an impartial and competent internal investigator was available (at less cost to the employer – of course).

Notably, the Bill does not provide any criteria for when an inspector may make such an order, leaving it up to the sole discretion of the inspector. This means that an inspector may order an employer to conduct a third party investigation into less serious allegations where a third party investigator is not necessary. This would lead to a time consuming and costly exercise that is not warranted in the circumstances.

Bill 132 also clarifies that a report generated as a result of a workplace harassment investigation, whether internal or external, is not a "report" for the purpose of the OHSA that needs to be shared with the joint health and safety committee. This is consistent with the obligation to protect confidentiality to the extent possible during a workplace investigation.

Implications for Employers

The legal landscape with respect to workplace harassment investigations continues to develop and Bill 132 is consistent with this trend. Increasingly workplace harassment investigations are being put "under the microscope" so to speak by adjudicators in various forums, including courts and tribunals. Bill 132 outlines certain procedural steps that must be taken when conducting workplace investigations, which will likely subject such procedures to further judicial scrutiny.

At the 17th annual Ontario Employment Law Conference, presented by Stringer LLP and First Reference Inc., employment lawyer Jessica Young will provide employers with guidance on how to comply with the new Bill 132 requirements. The Ontario Employment Law Conference will take place at the Corporate Event Centre at CHSI in Mississauga on June 2, 2016. We look forward to seeing you and helping you apply the latest employment and labour law changes. Come and learn the latest!

The Bill 132 amendments to the OHSA come into effect in September of 2016. Bill 132 will require employers to revisit their workplace harassment policies and make changes where necessary. Though having the process in place is the first step, the more challenging aspect is ensuring that the process is consistently followed and that investigations are conducted by an investigator with the necessary experience. Having a full understanding of the employer's obligations, not just under these new changes, but also the developing case law, will assist employers in avoiding the perils of a faulty investigation.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jessica Young
Events from this Firm
17 Oct 2018, Seminar, Toronto, Canada

This complimentary webinar will be held on Wednesday, October 17, 2018 and will run from 12 pm to 1 pm ET (including an interactive Q&A). Unique log-in instructions will be delivered separately in advance of the program.

Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
Blake, Cassels & Graydon LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
Blake, Cassels & Graydon LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions