Ontario Introduces new Sexual Violence and Harassment Legislation

November 4, 2015

Last week, the Ontario government introduced Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, to amend a number of statutes including the Occupational Health and Safety Act. This Bill is further to the government’s March, 2015 “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment.” 

For the majority of employers, the important changes flow from the proposed amendments to the Occupational Health and Safety Act (OHSA). Bill 132 would extend the definition of workplace harassment under OHSA to include workplace sexual harassment which Bill 132 defines, in a manner similar to the Human Rights Code, as:

(i) 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

(ii)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

OHSA would be amended to expressly provide that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace was not workplace harassment.

Section 32.06(2) of OHSA, dealing with the requirements of the program to implement an employer’s workplace harassment policy, would be expanded to include:

(i) an obligation to include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor if the employer or supervisor is the alleged harasser;

(ii)set out how information obtained during the investigation, including identifying information about any individuals involved, is not to be disclosed unless necessary for the purpose of investigating or taking corrective action or otherwise as required by law;

(iii)set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if a worker of the employer, would be informed in writing of the results of investigation and any corrective action taken or to be taken as a result of the investigation.

The Bill also imposes new employer duties to ensure that:

(i)an investigation, appropriate in the circumstances, is conducted into incidents and complaints of workplace harassment;

(ii) a worker who alleges workplace harassment and the alleged harasser, if a worker of the employer, are informed in writing of the results of the investigation and of any corrective action taken or to be taken as a result of the investigation.

Bill 132 expressly provides the result of an investigation and any report created in the course of or for the purpose of the investigation is not a report respecting occupational health and safety that must, pursuant to OHSA section 25(2) be provided to a joint health and safety committee, a worker health and safety representative or other workers.

Of note, Bill 132 would also amend OHSA to provide a health and safety inspector with the power to order an employer to cause an investigation to be conducted, at the employer’s expense, by an impartial person possessing such knowledge, experience and qualifications as are required by the inspector and to obtain, also at the employer’s expense, a written report from that person.

If passed, the provisions of Bill 132 will come into force on the later of six months after the Act receives royal assent or July 1, 2016.

Bill 132 has only passed first reading and it is possible that its provisions will be amended during the process. We will monitor developments in this regard.

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

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