On March 8, 2016, Bill 132 received Royal Assent at the
Legislative Assembly of Ontario. The Bill is part of the Ontario
government's strategy to support survivors of sexual violence
and eliminate sexual harassment. Bill 132 amends several
existing laws that affect people experiencing sexual harassment and
violence in the province. Of particular note to employers are the
amendments to the Occupational Health and Safety Act
Many Ontario employers will recall "Bill 168," a bill
that was passed into law in 2009 and which amended OHSA to deal
specifically with workplace violence and harassment. Bill 132
expands on - and clarifies - certain of the concepts that were
introduced into OHSA as a result of Bill 168. The most significant
changes are as follows.
OHSA's definition of "workplace harassment" is
being expanded to include (a) 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, or (b) workplace
sexual harassment. The amendment also specifically notes that a
"reasonable action" taken by an employer or supervisor
relating to the management and direction of workers or the
workplace is not workplace harassment.
"Workplace sexual harassment" is now defined in the
legislation to mean (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 expressed, 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. These definitions closely track the
definitions in the Ontario Human Rights Code.
Employers will now be obligated to develop a written program to
respond to issues of harassment and sexual harassment in the
workplace. Employers must review this program "at least
annually" and the program must:
(a) include measures and procedures for workers to report incidents
of workplace harassment to a person other than the employer, or the
supervisor if the employer or the supervisor is the harasser;
(b) set out how incidents or complaints of workplace harassment
will be investigated and dealt with;
(c) set out how information obtained about an incident or complaint
(including identifying information) will not be disclosed unless
the disclosure is necessary for the purposes of investigating or
taking corrective action or is otherwise required by law; and
(d) set out how a worker who has allegedly experienced workplace
harassment and the alleged harasser (if he or she is also a worker
for the employer) will be informed of the results of the
investigation and of any corrective action that has been
taken.4. OHSA will now also require employers to investigate
incidents and complaints of workplace harassment in a manner that
is "appropriate to the circumstances" and report back on
the outcome of that investigation to the complainant.
Employers must provide training and instruction to their
workers on their workplace harassment policy and program.
The Ministry of Labour will also have the power to order an
employer to have an "impartial person possessing such
knowledge, experience or qualifications as are specified by the
inspector" to conduct an investigation into allegations of
workplace harassment and provide a written report of his or her
findings. This impartial investigation must be at the
Bill 132 will require Ontario employers to revisit their
workplace violence and harassment policies to ensure that they are
compliant with the new requirements in OHSA. They will also need to
develop training protocols to ensure that both new hires and
existing employees receive training that is compliant with the
legislation. The amendments to OHSA also seem designed to encourage
more extensive use of independent workplace investigators rather
than depending on internal investigators, whether from the legal
team or human resources department.
These changes to OHSA come into force as of September 8,
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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