New employer duties under Ontario's sexual violence and harassment action plan

Amendments to OHSA include new sexual harassment definition, more employer duties

Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, contemplates amendments to six pieces of legislation, including Ontario’s Occupational Health and Safety Act (OHSA). The bill proposes to amend the OHSA to include a definition of workplace sexual harassment, additional employer duties with respect to workplace harassment and a new discretionary power allowing inspectors to order third-party investigations. Under the proposed bill, the OHSA amendments would come into force on the later of (i) July 1, 2016 and (ii) six months after the day the bill receives royal assent. The bill passed first reading at the Ontario legislature on Oct. 27, 2015.

The bill expands the current OHSA definition of "workplace harassment" to include "workplace sexual harassment." Workplace sexual harassment is subsequently 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.

This definition of workplace sexual harassment is consistent with the definition of sexual harassment found in the Ontario Human Rights Code. However, there is nothing in the current bill that restricts or limits a worker’s right to bring a human rights complaint under the code on the basis of sexual harassment in the workplace.

The bill also imposes new and/or expanded duties on employers with respect to workplace harassment programs and investigations. Among other things, employers will be required to:

   • Ensure that their workplace harassment program includes procedures for reporting workplace harassment to a person other than the employer or supervisor in cases where the employer or supervisor is the alleged harasser

   • Inform workers that information obtained in a workplace harassment complaint will only be disclosed as necessary to investigate the complaint or take corrective action, or as required by law

   • Inform complainants and alleged harassers in writing of the results of an investigation and any corrective action that will be taken

   • Review workplace harassment programs as often as necessary but at least annually

   • Provide workers with information and instruction on the contents of the workplace harassment policy and program.

In order to protect confidentiality, the bill expressly confirms that any report prepared in the course of or for the purposes of a workplace harassment investigation is not a report "respecting occupational health and safety." This is intended to negate the requirement that could otherwise arise under the OHSA for such reports to be provided to workers, the workplace health and safety committee, or health and safety representatives.

Lastly, the bill vests OHSA inspectors with the discretionary power to order an employer to hire an impartial person to carry out a workplace harassment investigation and prepare a report. These investigations and reports, if ordered by the inspector, must be paid for by the employer. It unclear at this time if/how "impartial" will be defined, what factors will guide an inspector to order such an investigation and what knowledge, experience or qualifications will be required of the investigators. We will continue to monitor the progression of this bill and any policy guidance or direction that the Ministry of Labour might provide on this issue.

Daryl Cukierman is a partner practicing labour and employment law with Blake, Cassels and Graydon LLP in Toronto. He can be reached at (416) 863-2585 or [email protected]. Seth Whitmore is an articling student, also with Blake, Cassels and Graydon LLP in Toronto. He can be reached at (416) 863-2434 or [email protected].

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