On September 8, 2016 the Occupational Health and Safety
Act (OHSA) will be amended to bolster an employers
obligations with respect to harassment prevention generally, and
sexual harassment specifically. I blogged about these looming
changes when the proposed
Bill 132 passed first reading in late October of 2015.
The Bill formed part of Premier Wynn's plan to end sexual
violence and harassment in our communities and workplaces. Bill 132
received royal assent on March 8, 2016 and provided employers a
6-month period to prepare for the changes, a period that is quickly
coming to an end.
As of September 8, 2016 the following amendments to the
OHSA will come into force:
The definition of "workplace
harassment" will be expanded to specifically include
"workplace sexual harassment". A definition of
"workplace sexual harassment" will be added to section
1(1) and include the following:
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
The requirement to develop and
maintain a program to implement the workplace harassment policy
must be done in consultation with the joint health and safety
committee or health and safety representative
Measures and procedures for the
reporting of workplace harassment when the employer or a supervisor
is the alleged harasser
How sensitive information such as
identifying information of the individuals involved will be handled
so that it is not disclosed unless necessary to the investigation,
corrective action, or as required by law
Describe how the results of an
investigation will be shared with the complainant and alleged
In addition to the above program requirements, Bill 132 imposes
a general duty for employers to protect workers from workplace
harassment and the following specific duties to achieve that
Conduct investigations into incident
and complaints of workplace harassment
Inform the complainant and alleged
harasser of the results of an investigation and any corrective
action taken; and
Review the workplace harassment
program as often as necessary but at least once per annum.
The addition of workplace sexual harassment into the OHSA
provides employers some insight into the type of behaviour that the
Ministry of Labour will be concerned with when enforcing the new
provisions. An exception to harassment for reasonable actions to
manage and/or direct workers will also be added to the definitions
section of the OHSA.
This amendment will require the employer to involve worker
representatives when crafting their plan to prevent and respond to
The requirement to conduct an investigation is tempered by the
phrase "appropriate in the circumstances", meaning that
employers have the discretion to conduct an investigation
commensurate with the allegations and circumstances. However the
final amendment provides the Ministry of Labour with the ultimate
check and balance regarding what is appropriate. Bill 132 grants
Ministry of Labour inspectors the power to compel an investigation
by an impartial third party. An investigation compelled by an
inspector, and the subsequent report, will be at the expense of the
The changes to the OHSA will require every employer to
revisit their policy and program with respect to workplace
harassment. The lawyers at CCP are experts in the area of
occupational health and safety and ensuring that workplace policies
are both legislatively sound and work for your business.
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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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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