On International Women’s Day, March 8, 2016, the Ontario Government passed Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. As set out in our previous update on Bill 132, the Bill amends six (6) pieces of legislation to extend protections to individuals who experience sexual violence, sexual harassment, and domestic violence.
The most notable changes for employers pertain to the Occupational Health and Safety Act (the “OHSA”). The changes will come into effect as of September 8, 2016. As of that date, the definition of “workplace harassment” will be amended to include “workplace sexual harassment”. Workplace sexual harassment is defined as: (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. A specific exemption is also being added to the definition of workplace harassment, such that workplace harassment does not include any reasonable action taken by an employer or supervisor related to the management and direction of the workers or the workplace.
Employers must develop and maintain a program to implement their workplace harassment policy in conjunction with the joint health and safety committee, or health and safety representative, if any. The program must:
- include measures and procedures for workers to report incidents of workplace harassment to persons other than their employer or supervisor, if the employer or supervisor is the alleged harassment;
- set out how incidents or complaints of workplace harassment will be investigated and dealt with;
- set out how information obtained about an incident or complaint, including identifying information about the individuals involved, will be protected from disclosure unless disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required at law; and
- set out 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 that has been taken or that will be taken as a result of the investigation.
The employer will have expanded duties to workers as a result of these amendments. Once the changes come into effect, employers must:
- ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
- ensure that the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and any corrective action that has been taken or that will be taken as a result of the investigation; and
- ensure that the harassment program that is developed is reviewed as often as necessary, but at least annually.
Most importantly, the amendments to the OHSA allow an inspector to order that an inspection be conducted by an independent third-party at the expense of the employer, and further allow an inspector to order that a written report be obtained from that third-party at the expense of the employer. Assuming that a third-party inspector will not be required in all cases, it remains to be seen what criteria will be followed to make the determination as to when it is appropriate to involve a third-party inspector.
In addition to the changes to the OHSA, Bill 132 also amends the following:
- As of March 8, 2016, the Compensation for Victims of Crime Act is amended to eliminate the regular limitation period for individuals making an application that results from the commission of a crime of sexual violence or of violence that occurred within a relationship of intimacy or dependency.
- As of March 8, 2016, the Limitations Act, 2002 is amended to remove the limitation period for all sexual assaults and assaults that took place in a power dependency relationship.
- As of January 1, 2017, the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005, will be amended to include a section pertaining to sexual violence. Colleges and universities that receive regular and ongoing operating funds from the government and private career colleges are required to have a sexual violence policy, and receive student input on the policy. The covered institutions will also have an obligation to report statistics about complaints and provide information about the policies and programs in place to the Ministry.
- As of September 8, 2016, the Residential Tenancies Act, 2006 is amended to permit tenants to terminate a tenancy early if the tenant, or a child residing with the tenant, is deemed to have experienced sexual or domestic violence.
All of the above amendments are in keeping with the Ontario Government’s ongoing action plan with respect to sexual violence and harassment, “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment.” Employers must be alert to violence and harassment affecting employees both inside and outside the workplace and must be mindful of protecting employees’ safety at all times. There are significant potential costs associated with the authority for Ministry of Labour inspectors to order that employers hire third-party investigators to conduct workplace investigations and obtain reports from those investigators. Employers should minimize these expenses by taking proactive steps to reduce the need for third-party intervention by having clear policies and procedures with respect to workplace harassment and violence, and by ensuring that all workplace parties are properly trained on those procedures and by conducting their own internal investigations, where necessary.