“It’s never okay” – Ontario continues crackdown on sexual harassment

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In March of this year the Ontario government published a 40 page Action Plan to combat sexual violence and harassment in both our workplaces and communities. The Action Plan contains 13 specific commitments by the Ontario government, each aimed at stopping sexual violence and harassment. Among these commitments is the introduction of legislation to strengthen existing legislation for our workplaces, school campuses, housing, and civil claims. Bill 132, introduced on October 27, 2015, represents the first step to achieve this goal in Ontario communities and workplaces.

If the Bill passes through the legislature in its current state it will affect all employers through amendments to the Occupational Health and Safety Act, and Ontario colleges and universities through amendments to the Ministry of Training, Colleges, and Universities Act.

Occupational Health and Safety Act

Amendments to the OHSA begin by adding a definition for “workplace sexual harassment” and including workplace sexual harassment in the more general definition of workplace harassment. The proposed definition for workplace sexual harassment is provided below:

(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.

In addition to above, Bill 132 bolsters the Violence and Harassment section of the OHSA (Part III.0.1) by describing additional required components of a workplace harassment program. Some of these new components of section 32.06 include:
  • How to report incidents when the employer or supervisor is the harasser;
  • How information obtained from a complaint or incident will be kept confidential; and
  • How results of an investigation will be distributed.
The current version of section 32.07 (requiring information and instruction on a workplace harassment policy and program) would become section 32.08 and the new section introduces more robust language requiring: 
  • Investigation into incidents and complaints of workplace harassment
  • Providing investigation results to the worker who has allegedly experienced workplace; harassment and the alleged harasser; and
  • A review of workplace harassment program annually, at a minimum.
Lastly, Bill 132 would create a new power for Ministry of Labour inspectors, to require that an independent 3rd party investigation be conducted. The investigation and report would be completed at the employer’s expense.

Ministry of Training, Colleges, and Universities Act

The current draft of Bill 132 would implement new requirements for policy creation, student input, and the collection of statistics related to sexual violence at Ontario colleges and universities. As well, a fairly broad definition of sexual violence would be added and includes sexual harassment:

“Sexual violence” means any sexual act or act targeting a person’s sexuality, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.

The new sections would require that every college and university have a specific sexual violence policy that addresses how the institution will respond to incidents and complaints and other issues which may be required by further regulation. Furthermore, institutions must receive input from the student body when developing the policy and report to the Minister the number of times supports, services and accommodation relating to sexual violence are requested. 

These proposed amendments may never come to fruition or could look drastically different if they pass through 2nd and 3rdreading. Regardless, it is important that employers are aware of impending changes and consider what adjustments may be needed to their internal policies and programs. As Bill 132 progresses, CCP will provide updates regarding any developments relevant to employers. The lawyers at CCP can advise how these provisions will affect the way you do business and ensure that you remain compliant with affected employment related legislation.
 

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