A new bill before the Ontario Legislature, Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015(the “Act”), would amend several pieces of legislation to extend protections to individuals who experience sexual violence, sexual harassment and domestic violence. Bill 132 was proposed as part of the Ontario’s Government’s ongoing efforts in conjunction with “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.
The most wide-reaching changes for employers would be in relation to the proposed changes to the Occupational Health and Safety Act, RSO 1990, c O.1 (the “OHSA”), which includes an expanded definition of workplace harassment and imposes additional obligations on employers in relation to workplace investigations.
Bill 132 would include “workplace sexual harassment” in the definition of “workplace harassment”. Accordingly, each reference to workplace harassment throughout the OHSA would include workplace sexual harassment. Workplace sexual harassment would be defined as: (a) engaging in a course of vexatious comment or conduct against a worker in a workplace because or 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.
Bill 132 would impose additional obligations on employers with respect to workplace investigations. Currently, an employer is required to have measures and procedures in place to report incidents of workplace harassment, and set out how the employer will investigate incidents and complaints. The proposed changes would amend the OHSA to include the following specific elements:
- 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;
- set out how information obtained during an investigation, including identifying information, will be kept confidential unless the disclosure is necessary for the purpose of the investigation or taking corrective action, or is otherwise required by law;
- set out how a complainant and an alleged harasser will be informed of the results of the investigation, in writing, and of any corrective action that has been taken or that will be taken as a result of the investigation; and
- require employers to review programs addressing harassment as needed but, at a minimum, annually.
One of the most significant proposed changes would give an inspector under the OHSA the power to order an employer to hire an independent third-party to conduct a workplace harassment investigation and obtain an investigation report at the employer’s expense.
In addition to the proposed changes to the OHSA, Bill 132 also proposes changes to the following legislation:
- Compensation for Victims of Crime Act
The Compensation for Victims of Crime Act, RSO 1990, c C. 24, would be 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.
- Limitations Act, 2002
The Limitations Act, 2002, SO 2002, c 24, Sch B, would be amended to remove the limitation period for all sexual assaults and assaults that take place in a power dependency relationship.
- Ministry of Training, Colleges and Universities Act and Private Career Colleges Act, 2005
The Ministry of Training, Colleges and Universities Act, RSO 1990, c M.19 and the Private Career Colleges Act, 2005, SO 2005, c 28, Sch L, would be amended to require colleges and universities that receive regular and ongoing operating funds from the government and private career colleges to include a section pertaining to sexual violence. The Acts would be amended to include an expansive definition of sexual violence and the institutions would be required to have a sexual violence policy. The policy would have to: (a) set out a process for responding to and addressing incidents and complaints of sexual violence; (b) be drafted with student input; and (c) would have to be reviewed at least every three years. The covered institutions would also have an obligation to report statistics about complaints, and provide information about the policies and programs in place to the Ministry.
- Residential Tenancies Act, 2006
The Residential Tenancies Act, 2006, SO 2006, c 17, would be 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.
If the amendments are passed, there will be significant additional obligations on employers to protect individuals from sexual violence, sexual harassment, and domestic violence. Employers operating colleges and universities that receive regular and ongoing operating funds from the government and private career colleges will be required to develop new policies and will have extensive reporting obligations with respect to sexual violence. Bill 132 has been referred to the Standing Committee on Social Policy after passing second reading on December 9, 2015. Filion Wakely Thorup Angeletti LLP will keep you updated on the status of these potential amendments.