On December 15, 2009, Bill 168, An Act to amend the
Occupational Health and Safety Act with respect to violence and
harassment in the workplace and other matters received Royal
Assent. As a result, Ontario employers have until June 15, 2010 to
ensure that their workplace complies with the new law.
The new law tackles workplace harassment and violence as a
health and safety issue introducing the following definitions into
the Occupational Health and Safety Act
"workplace harassment" means 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.
"workplace violence" means,
a. the exercise of physical force by a person against a worker,
in a workplace, that causes or could cause physical injury to the
b. an attempt to exercise physical force against a worker, in
the workplace, that could cause physical injury to the worker,
c. a statement or behaviour that is reasonable for a worker to
interpret as a threat to exercise physical force against the
worker, in a workplace, that could cause physical injury to the
The new law amends the general obligations under the current
OHSA to expressly impose obligations on employers,
supervisors and workers to take all reasonable steps to protect
workers from workplace harassment and violence. There is an
additional obligation imposed on employers with respect to domestic
violence. Employers who are aware or ought to be aware that a
domestic violence situation is likely to expose a worker to
physical injury in the workplace will be obliged to take all
reasonable precautions to protect their workers. Similarly,
employers must also provide their workers with information,
including personal information, about a person with a history of
violent behaviour. This obligation will be triggered only if the
worker is likely to encounter that person in the course of his or
her work and the risk of workplace violence is likely to expose the
worker to physical injury. The law also extends the existing work
refusal provisions in the OHSA to grant workers the right
to refuse work if workplace violence is likely to endanger the
To prevent workplace harassment and violence, employers will be
required to develop a policy and program to proactively deter
workplace harassment and violence. The policy and program must
include the conduct of a risk assessment and the creation of a
reporting and complaint investigation mechanism. The policy must be
reviewed at least annually, and it must be posted at a conspicuous
place in the workplace.
In terms of workplace harassment, the Ontario Human Rights
Code (the Code) has long prohibited harassment in the
workplace based on race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, age, record of offences, marital
status, family status or disability. Traditionally, harassment that
was based on other, non-protected grounds was not actionable,
unless the employer had agreed to extend this protection by way of
policy or in a collective agreement. The one caveat to this has
been the development of a body of law by the courts in which
protracted, serious, personal harassment has been found to amount
to a constructive dismissal. This development created protection
for employees from severe, harassment based on nonprotected
grounds, but for less severe harassment, no legal protection
existed. The amendments change this because they require employers
to treat harassment based on non-protected grounds in the same
manner as harassment based on Code-protected grounds.
Depending on an employer's existing policies or collective
agreement language, these obligations may greatly extend an
employer's current obligations.
By introducing this new law, Ontario is following the lead of
other provinces, but also extending the protection further in some
respects. Under Ontario's law, proof of an effect on, or damage
to an employee's dignity or psychological or physical integrity
created by the harassment is not required. There is also no
requirement to prove that the harassment creates a harmful work
environment – this is effectively assumed to be one of
the effects of workplace harassment.
As noted above, Ontario employers must be fully compliant with
the new law by June 15, 2010. In the interim, employers would do
well to involve their employees in the process of developing a
workplace violence and harassment program that satisfies the unique
needs of their own workplace as well as the basic requirements of
the new law. Through cooperation and engagement, employers can
create a workplace culture that is safe and profitable.
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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In Shirbigi v. JM Food Services Ltd. (2014 BCSC 1927), the B.C. Supreme Court found that an employer could not mask the fact that it had constructively dismissed the plaintiff simply by relocating her place of work.