On March 8, 2016, the Sexual Violence and Harassment Action
Plan Act (Supporting Survivors and Challenging Sexual Violence and
Harassment), 2016 (the "Act") received
The Act which was first introduced as Bill 132 on
October 27, 2015, amends six statutes with respect to sexual
violence, sexual harassment, domestic violence and related matters.
Notably for employers, the Act amends the Occupational
Health and Safety Act, R.S.O. 1990, c. O.1 (the
"OHSA") and creates new obligations for
employers concerning workplace harassment. The amendments to the
OHSA will come into force on September 8, 2016.
Workplace Harassment Includes Sexual Harassment
The Act expands the definition of "workplace
harassment" in the OHSA 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.
New Employer Obligations
The amendments to the OHSA require employers to develop
and maintain a written program to implement their workplace
harassment policy. The written program is to be created in
consultation with a joint health and safety committee or health and
safety representative, if applicable, and must be reviewed at least
annually. The written program must outline, amongst 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
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 the purposes of
investigating or taking corrective action with respect to the
incident or complaint, or is otherwise required by law; and
how a worker who has allegedly
experienced 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.
The Act also requires that employers ensure that their
harassment policy and written program is properly implemented and
that workers receive proper information and instruction on the
policy and program. Specifically, an employer must make sure that
an appropriate investigation is conducted into incidents and
complaints of workplace harassment. Employers must ensure that the
worker and alleged harasser, if he or she is a worker of the
employer, are informed in writing of the results of the
investigation and any corrective action taken.
One of the most significant amendments to the OHSA is
that OHSA inspectors now have the power to order that an
employer hire an impartial third party, at the employer's
expense, to conduct a workplace harassment investigation and
produce a report. The amendment does not, however, specify the
circumstances in which the inspector will order an employer to
retain an impartial third party, or how impartiality will be
In order to ensure privacy and confidentiality, the results of
an investigation conducted into incidents and complaints of
workplace harassment will not be disclosed to the committee, a
health and safety representative or employees, unlike other
investigations conducted under the OHSA.
Takeaway for Employers
The amendments to the OHSA create significant new
obligations for employers, but also make clear that a reasonable
action taken by an employer or supervisor relating to the
management and direction of workers or the workplace does not
constitute workplace harassment.
Employers should begin the process of reviewing and updating
their workplace harassment policies and programs to ensure they
comply with the OHSA amendments. Employers should also
ensure that managers, human resources personnel and workers receive
appropriate training and understand the meaning and impact of the
amendments well before they come into force.
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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