New legislation defining workplace sexual harassment — Bill 132 — receives Royal Assent
On March 8, 2016, the Ontario government passed Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The legislation will amend various statutes, including the Occupational Health and Safety Act (OHSA), with respect to sexual violence, sexual harassment, domestic violence and related matters — and employers should take notice.
The legislation is an important part of “It’s Never Okay,” the province’s three-year action plan to help change attitudes, improve supports for survivors who come forward, and make workplaces, communities and school campuses safer and more responsive to incidents and complaints about sexual violence and harassment.
Amendments to Ontario OHSA
The following amendments to the province’s Occupational Health and Safety Act will come into effect on July 1, 2016:
1. The definition of “workplace harassment” in ss. 1(1) of the OHSA will be amended to include “workplace sexual harassment.”
2. The OHSA will provide a 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.”
3. Bill 132 clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or workplace is not workplace harassment.
4. Employers will still be required to develop and maintain a program to implement against workplace harassment. However, they must now consult with the joint health and safety committee or an OHS representative and the program must be in writing.
5. Employers will be required to include additional elements in their written program on workplace harassment, as follows:
• Measures and procedures to report incidents of harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser.
• How incidents or complaints of harassment will be investigated and addressed.
• How information obtained about an incident or complaint of workplace harassment, including identifying information about anyone involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action, or is required by law.
• 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 as a result of the investigation.
• Any prescribed elements.
6. Employers will have additional duties with respect to protecting workers from workplace harassment as follows:
• Conduct an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances.
• Inform the worker who allegedly experienced harassment and the alleged harasser, in writing, of the results of the investigation and of any corrective action that has been taken or that will be taken.
• Review the program as often as necessary, but at least annually.
• Ensure workplace parties carry out their legal duties under the OHSA.
7. The amendments will make a distinction between “health and safety reports” and investigation reports related to workplace harassment. In the new s. 32.0.7(2) of the act, employers will not be required to provide the results of any report created from or for an investigation into a complaint of harassment to the joint health and safety committee, as they are required to do with other health and safety reports.
8. There will be a new provision in the OHSA that will allow an inspector to order an employer to have an investigation conducted by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain a written report by that person. Presumably this means that Ministry of Labour inspectors would have a clearly defined role in the resolution of complaints or issues and that the OHSA would expressly involve ministry inspectors in complaint resolution.
Amendments to other laws
Bill 132 will also amend other statutes to address sexual violence and harassment on school campuses and in our communities. Some of these amendments came into force, the day that Bill 132 received Royal Assent.
Compensation for Victims of Crime Act. Currently, s. 6 of the act imposes a limitation period of two years on applications for compensation. The section is amended to remove this limitation period for applications resulting from the commission of a crime of sexual violence or of violence that occurred within a relationship of intimacy or dependency. This applies to applications commenced before the amendments come into force, subject to certain exceptions. Comes into force March 8, 2016.
Limitations Act. The Limitations Act, 2002 is amended to allow no limitation period in respect of proceedings based on sexual assault or, in specified circumstances, on other misconduct of a sexual nature or on assault. This applies whenever the subject of the claim took place and regardless of the expiry of any previously applicable limitation period, subject to specified exceptions. Comes into force: March 8, 2016.
Ministry of Training, Colleges and Universities Act. This act is amended to impose obligations on colleges and universities respecting sexual violence involving students. Colleges and universities must have sexual violence policies that set out the process when incidents and complaints of sexual violence are reported, and that address any other matters required under the regulations. Comes into force Jan. 1, 2017, with certain amendments on a day to be named by proclamation.
Private Career Colleges Act. Amended to impose various obligations on private career colleges respecting sexual violence involving students. The amendments require such colleges to have sexual violence policies that set out the process when incidents and complaints of sexual violence are reported, and address any other matters required under the regulations. Regulations may also require the colleges to implement other measures addressing sexual violence involving students. Comes into force Jan. 1, 2017.
Residential Tenancies Act. Amendments include shortening the length of notice a tenant must give a landlord in situations where the tenant is fleeing domestic or sexual violence. Comes into force Jan. 1, 2016.
