May 27, 2015
Authors: Jeremy Warning and Cheryl A. Edwards, Partners, Mathews, Dinsdale & Clark LLP
The recent incident in which a male spectator at a soccer match in Toronto uttered a vulgar phrase into the microphone of a female television reporter has, again, generated intense public discussion regarding the issue of sexual harassment. This incident has added to the recent list of allegations of sexual harassment and violence made against public figures such as Jian Gomeshi and Bill Cosby and those in positions of power such as a Durham Region Justice of the Peace[1] (against whom the allegations were proven and were sufficient to warrant his removal from his position). Regrettably, sexual harassment is not a new issue. However, the Ontario government recently signalled that it will be taking new steps to ensure employers have new, specific OHS legal obligations to prevent sexual harassment and sexual violence, and respond to sexual harassment complaints.
On March 6, 2015 an Action Plan titled “It’s Never OK: An Action Plan To Stop Sexual Violence and Harassment” was announced. The Plan appears to include proposals to amend the Ontario Occupational Health and Safety Act (“OHSA”) to include a specific definition of “sexual harassment” and impose specific investigation obligations on employers. The proposed Action Plan also details the government’s intentions to bring about other systemic changes, involving the Ontario OHSA and its enforcement to comprehensively address sexual harassment. These intentions may include the creation of a Code of Practice pursuant to the OHSA, the establishment of workplace inspection teams to enforce amended OHSA sexual harassment provisions, and various other possibilities. These proposed changes would dovetail with current Human Rights Code obligations for employers, and remedies, as well as Criminal Code sanctions applicable to certain behaviours.
This Advisor examines the potential changes to the Ontario OHSA and how these potential changes could build on or alter existing obligations regarding workplace harassment. Candidly, the scope of prospective changes remains unclear. Yet, one question that immediately arises from the content of the Action Plan is whether policy and procedure, training-related and investigative changes specific to one type of harassment are needed or would assist given existing OHS harassment laws. Other changes, which could include new harassment-related employer or supervisory duties, work refusal rights, or enforcement provisions for employers who fail to protect workers from sexual harassment might effect more significant workplace change and would certainly change the OHS landscape for employers. For context, this advisor also references more expansive harassment-related provisions already existing in Canada.
The Ontario Announcement
The Action Plan indicates that the government intends to do its part to establish an Ontario where everyone lives in safety and is free from the threat, fear or experience of sexual violence and harassment. The Action Plan includes a number of commitments that are OHSA specific and some that go far beyond commitments related to OHS legislation and enforcement. Amongst the most important commitments are the plan to:
The government committed to monitoring progress and will provide an update on the Action Plan on its first anniversary. So what will the new OHS-related provisions look like? Unfortunately, attempts to obtain information from Ontario Ministry of Labour contacts have yet to yield any definitive information. The Ontario government anticipates investing $41 million in its Action Plan. Independent reports indicate that $5.8 million will be spent to support amendments to the OHSA and on workplace inspection teams to support OHSA amendments[2]. At the time of writing, the precise nature of the proposed legislative changes to the OHSA and timing remains unclear.
Current Ontario OHS Obligations Respecting Harassment in the Workplace
As some readers may know, Ontario was one of the last Canadian jurisdictions to add “workplace violence” prevention provisions to its OHS legislation, but one of the leaders in adding “workplace harassment” provisions into the OHSA. Effective June 15, 2010, provisions, known colloquially as “Bill 168”, added definitions of workplace violence and harassment into the Ontario OHSA (this Advisor will not deal with violence given the apparent focus of the Action Plan on harassment). Workplace harassment has been defined broadly in the OHSA since 2010 as “a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Harassment is a matter for which Ontario employers must take several steps including:
The term harassment to date remains broadly defined as encompassing any kind of course of conduct unwelcome to a worker in the workplace. Notably, it is not tied to personal characteristics or grounds such as sex, race, sexual orientation or other matters that are protected grounds under human rights legislation. Consequently, the OHSA already includes a broad and all-encompassing harassment definition that, arguably, includes sexual or any other type of personal harassment.
What Ontario has not done to date in harassment-related OHS provisions is create a clear employer prevention obligation. This is a matter that has given rise to some interesting case law—where workers have complained they suffered employment-related reprisals because they “sought to enforce the OHSA” by complaining about harassment. The Ontario Labour Relations Board has wrestled with this issue. Earlier decisions ruled that the harassment-related content of the Ontario OHSA is procedural only (i.e. consisting only of an obligation to create a policy, program and train). More recently, though, the Board has stated that there must be more than procedural content; that there is an active obligation on employers to enable workers to make complaints and it cannot be correct that there is no worker remedy if an employer terminates a worker for doing so. While it may be premature to believe that the issue has now been finalized, it does appear that the latter approach has taken hold.
Anticipating Change: Potential Developments in Employer Obligations, Worker Rights and Enforcement
Gazing into a crystal ball is always difficult. It seems clear, however, that certain amendments to the Ontario OHSA are likely, and several others are possible. These amendments could include:
a) New Definition of Sexual Harassment. It seems likely from the Action Plan announcement that we will see a new and specific definition of “sexual harassment” added to the OHSA. It is not certain how a clear definition will be achieved. Further, unless new rights or remedies relate to this particular type of workplace harassment, it remains to be seen how the inclusion of a specific definition will improve upon the obligations of employers or future worker rights, when Ontario already has the most expansive definition of harassment possible. For comparative purposes, it is worth noting that two jurisdictions, Saskatchewan and Manitoba, define harassment as related to prohibited grounds such as race, creed, religion, color, sex, sexual orientation (without defining sex or sexual harassment).
b) New OHS Duty to Protect Workers from Harassment or Sexual Harassment. Only one jurisdiction in Canada, Saskatchewan, clearly sets out an obligation to ensure, as far as is reasonably practicable, that workers are not exposed to harassment respecting any matter or circumstance arising out of the worker’s employment. The Action Plan suggests the OHSA amendments could include a new employer obligation to “make every reasonable effort to protect workers from harassment, including sexual harassment in the workplace”. It still remains unclear how a specific OHS obligation to protect workers from sexual harassment would be an improvement on a general duty to protect all workers from all types of harassment. No mention is made of supervisory duties to protect workers, or worker duties not to harass fellow workers but it is reasonable to anticipate that such duties would be components of a more proactive obligation to protect workers.
c) Right to Refuse Work for Harassment. This has not been mentioned in the Action Plan. It will no doubt arise as an issue because there is, currently, a difference in the right to refuse work between matters involving workplace violence and those involving workplace harassment. More particularly, the Ontario OHSA contains a specific right to refuse to work if a worker reasonably believes that workplace violence is likely to endanger them. No corresponding refusal right exists in Ontario or elsewhere for a worker who reasonably believes they are subject of an unwanted course of conduct including any type of harassment.
d) Enforcement Provisions Relating to Harassment. The Action Plan suggests that an enforcement team of inspectors, trained to address complaints of workplace harassment, including sexual harassment, will enforce the new harassment provisions. This has the potential to result in a number of significant changes in how workplace harassment is addressed in Ontario.
i) Ministry of Labour Investigations of Workplace Harassment Complaints: Currently, Ministry of Labour inspectors do not investigate the merits of a complaint of workplace harassment. Consistent with the current OHSA provisions relating to workplace harassment, the investigation of the details of harassment allegation is left to the employer. However, the changes suggested in the Action Plan make it reasonable to anticipate that Ministry of Labour inspectors may carry out workplace harassment investigations involving the same detailed collection of information as is currently gathered during other OHSA investigations. Further, it raises the question of whether Ministry of Labour inspectors might have a role in the resolution of workplace harassment complaints or issues. This could happen if Ontario is influenced by the system in Saskatchewan. There, in addition to the general duty for employers to prevent harassment, OHS legislation expressly involves OHS officers in complaint resolution as an option. The right to request assistance of an OHS officer to resolve a complaint must be stated in harassment policies. In addition to the entitlement to bring an internal complaint pursuant to employer policies or commence a human rights complaint, a worker may complain to an OHS officer who will determine the matter, and endeavour to mediate an acceptable resolution. If a resolution cannot be arrived at, in addition to giving a written decision that the matter cannot be resolved, the officer may issue a notice of contravention to the employer. An appeal may be made to an adjudicator respecting any decision of the officer on a matter of harassment.
ii) Remedial Measures Required by Order: OHS inspectors have broad powers to issue compliance orders requiring the workplace parties to address health and safety issues. Importantly, these powers include the authority to issue stop work orders and the production of compliance plans. If such powers can be exercised by inspectors addressing issues of workplace harassment, there could be a significant evolution in the types of orders that could be issued under the OHSA. If Ministry of Labour inspectors are issuing orders that substantively address workplace harassment issues, will employers see orders that impact staffing or work assignments (such as an order requiring a supervisor or worker to be reassigned to different job, shift, or work location)? Will employers be ordered to provide workers or supervisors with sensitivity, respectful workplace, or other training to address harassing behaviour? These questions cannot be answered now but highlight the kinds of orders that may be issued under the OHSA.
iii) Prosecution for Workplace Harassment: Prosecution, the most serious enforcement mechanism, has not yet been utilized in relation to workplace harassment, although several Canadian employers have faced prosecution now for failure to protect workers from workplace violence. However, expanded provisions relating to workplace harassment may be supported through prosecution. If this happens, employers may be facing prosecution under the OHSA in addition to any remedies that may be sought by workers in other forums – such as through a grievance, civil claim or complaint under the Ontario Human Rights Code.
It remains early days as, to date, there have been no steps taken to implement any of the potential OHSA changes that are contained in the Action Plan. With a stated commitment to provide an update on the Action Plan after twelve months, we anticipate that developments will soon begin to unfold. We will monitor any developments and continue to inform readers as this initiative evolves.
[1]Source: The Toronto Star, May 1, 2015.
[2]Source: The National Post, March 6, 2015.
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