Introduction

Recently in Ontario there has been a slew of anti-sexual harassment and anti-violence ads on television and YouTube, audio segments on the radio and posts on Twitter and Facebook depicting uncomfortable examples of harassment, including harassment in the workplace. This media blast was launched as part of the Ontario government's "It's Never Okay: An Action Plan to Stop Sexual Violence and Harassment" action plan.

Driven to combat sexual harassment and violence in Ontario, the three-year action plan goes beyond public service announcements to amend key workplace legislation through the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) 2015. The act, parts of which came into force on March 8 2016, introduces a number of changes that will affect employers in Ontario.

Changes

The Sexual Violence and Harassment Action Plan Act amends several pieces of legislation, including:

  • the Occupational Health and Safety Act;
  • the Compensation for Victims of Crime Act;
  • the Limitations Act 2002;
  • the Ministry of Training, Colleges and Universities Act;
  • the Private Career Colleges Act 2005; and
  • the Residential Tenancies Act 2006.

For employers and human resources professionals, the most significant changes introduced by the act are those to the Occupational Health and Safety Act. These changes will take effect on September 8 2016.

Definition of 'workplace harassment'

The definition of 'workplace harassment' contained in the Occupational Health and Safety Act will be altered to include 'workplace sexual harassment'. 'Workplace sexual harassment' will be 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.

Workplace harassment policy or programme

As of September 8 2016, employers must also establish a workplace harassment policy or programme that includes workplace sexual harassment. Such programmes must:

  • 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;
  • set out how incidents or complaints of workplace harassment will be investigated and dealt with;
  • delineate how information obtained about an incident or complaint of workplace harassment – including identifying information about any individuals involved – will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint or is otherwise required by law; and
  • advise 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.

Expansion of employers' duties

Employers' duties to protect workers from harassment in the workplace will also be expanded to include a duty to ensure that:

  • an appropriate investigation of incidents and complaints of workplace harassment is conducted;
  • both the worker who complains of harassment and the alleged harasser (if the alleged harasser is the employer's worker) are told in writing of the results of the investigation and any corrective actions that will be taken or have already been taken; and
  • the harassment programme detailed above is reviewed annually.

Expansion of inspectors' powers

Finally, inspectors' powers under the Occupational Health and Safety Act will be broadened to allow them to order an employer, at its own expense, to conduct a workplace harassment investigation using an impartial third party and to obtain an accompanying written report. The circumstances under which such orders will be made are not yet clear.

Removal of limitation periods for civil claims of sexual assault

While the changes to the Occupational Health and Safety Act will not take effect until September 2016, the following legislative amendments took effect on March 8 2016:

  • The limitation period for bringing a civil claim of sexual assault or, in specified circumstances, a claim of other misconduct of a sexual nature was removed; and
  • The two-year limitation period for applications for compensation involving the commission of a crime of sexual violence or of violence that occurred within a relationship of intimacy or dependency was removed.

Comment

As a result of the above amendments, the most important takeaway point for employers is that workplace harassment policies and programmes will likely require revision before September 8 2016. In particular, employers should ensure that their policies contain definitions of 'harassment' that align with the new definitions set out under the Occupational Health and Safety Act, and that an investigation and complaint resolution process exists for sexual harassment in the workplace. Overall, these changes mean that employers will face greater scrutiny and be subject to enhanced obligations to protect employees from sexual violence and harassment.

For further information on this topic please contact Rachel Younan at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381) or email (ryounan@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

Claire Feltrin, articling student, assisted in the preparation of this update.

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