New legislation aimed at addressing sexual violence and harassment in Ontario received Royal Assent on March 8, 2016.
The Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 (the “Act”) is part of the Ontario government’s action plan to stop sexual violence and harassment. The Act was first introduced by the Ontario Legislature as Bill 132 on October 27, 2015. Click here for a link to our earlier blog post on Bill 132.
The Act introduces amendments to various statutes which will come into force in the coming months. The amendments are intended to bolster the protection of students and employees, among other objectives.
Colleges and universities will have new obligations placed upon them as of January 1, 2017. Employers will be subject to the new obligations as of September 8, 2016. Below are the key amendments.
Colleges and Universities
The Act amends the Ministry of Training, Colleges and Universities Act and the Private Career Colleges Act, 2005. Colleges and universities will be required to create a sexual violence policy that outlines how the institution will respond to and address incidents or complaints of sexual violence involving students. The institution must consider student input in developing the policy and in subsequent review and amendments. The policy must be reviewed at least every three years.
Colleges and universities will also be required to collect, and provide to the Minister, data and information relating to:
- the number of incidents and complaints of sexual violence reported by students and relevant information;
- the number of times supports, services and accommodation relating to sexual violence are requested and obtained by students (and information about the supports, services and accommodation);
- any initiatives and programs established by the institution to promote awareness of the supports and services available to students; and
- the implementation and effectiveness of the policy.
Reasonable steps must be taken to avoid disclosing personal information in the information provided to the Minister.
The Minister may also conduct, or direct the institution to conduct, a survey of students, or other persons, relating to the effectiveness of the institution’s sexual violence policy.
A definition of “sexual violence” is added to Ministry of Training, Colleges and Universities Act and thePrivate Career Colleges Act, 2005. The definition encompasses non-consensual sexual acts and acts targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature.
The Act amends the Occupational Health and Safety Act (“OHSA”). Employers will be required to investigate incidents or complaints of workplace harassment, including workplace sexual harassment. The investigation needs to be one that is appropriate in the circumstances. The complainant and alleged harasser (if a worker) must be informed in writing of the investigation results and any corrective action.
An inspector may order that an impartial third-party conduct an investigation at the employer’s expense. The inspector may also require that the third-party prepare a written report, also at the employer’s expense.
Employers will also be required to create a policy and program to prevent workplace harassment, including workplace sexual harassment. The program covers how to implement the policy and must include:
- how the employer will investigate and deal with incidents or complaints of workplace harassment;
- measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor (or another person if the employer or supervisor is the alleged harasser);
- how information about an incident or complaint will not be disclosed (unless disclosure is necessary to the investigation or corrective action, or is otherwise required by law); and
- how a worker will be informed of the results of an investigation and any corrective action taken.
The program must be developed in consultation with the joint health and safety committee or health and safety representative, if any. The program needs to be reviewed at least annually.
A definition of “workplace sexual harassment” is added to the OHSA. The definition encompasses (a) a course of vexatious and unwelcome comment or conduct against a worker because of sex, sexual orientation, gender identity or gender expression, and (b) an unwelcome sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to the worker.
The employer will need to ensure that its workers are provided with the workplace harassment policy and program and receive appropriate instruction on their content.