October 29, 2015
While sexual harassment is not a new issue, the recent surge of media reports on allegations of sexual harassment, such as the Jian Gomeshi and Bill Cosby incidents, have spurred the Ontario Government to move forward with its Action Plan known as “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.
Ontario recently took another official step in executing its Action Plan by introducing Bill 132 ([http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session1/b132.pdf) – known as the Sexual Violence and Harassment Action Plan Act, 2015 – into the Legislature. Bill 132 passed the first reading on October 27, 2015.
Details of the Action Plan, announced in March 2015, and potential OHS – related changes, only some of which have found their way into Bill 132, were previously covered in an article (http://www.mathewsdinsdale.com/ontarios-action-plan) by two of our leading occupational health and safety experts. A seminar was also recently hosted by industry leading lawyers Cheryl Edwards, Elizabeth Keenan and Jeremy Warning (http://www.mathewsdinsdale.com/seminars/ ontarios-action-plan-on-sexual-violence-and-harassment), addressing how the changes being proposed by Ontario’s Action Plan would interplay with current human rights obligations, civil and criminal claims, remedies and prosecutions.
The effect of Bill 132, if passed into law, would be to make notable changes to various existing provincial legislation, including the Occupational Health and Safety Act and the Limitations Act, 2002, among others.
Occupational Health and Safety Act (“OHSA”)
In June 2010, previous amendments to the OHSA, known colloquially as “Bill 168”, took effect, and essentially required employers to implement new workplace policies dealing with violence and harassment in the workplace. Subsequent attempts to interpret the changes imposed by Bill 168 have caused some uncertainty about the extent to which those amendments required employers to prevent and investigate incidents of workplace harassment.
Bill 132 serves to expand and clarify these obligations, require employers to amend their current violence and harassment policies, and provide additional powers to Ministry of Labour inspectors. However, other than creating a definition of workplace sexual harassment, Bill 132 does not impose any specific duties or obligations specific to sexual harassment. Specifically, if passed, Bill 132 would:
1. Define “workplace sexual harassment” and clarify that “workplace harassment” includes workplace sexual harassment. “Workplace sexual harassment” is defined as:
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.
2. Require that workplace violence and harassment policies address the following points:
3. Require employers to:
4. Give Ministry of Labour Inspectors the power to order an employer to bring in a qualified third party to investigate an incident or complaint of workplace harassment, at the employer’s expense.
As some small comfort to employers, the proposed changes would contemplate an addition to the OHSA to clarify that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
It is important to note that any investigation conducted and report created would not be required to be submitted to the occupational health and safety committee.
Limitations Act, 2002 (“Limitations Act”)
Another notable change contemplated by Bill 132 is an amendment to the Limitations Act which would eliminate the limitation period for a person to commence a proceeding based on a sexual assault or, in specified circumstances, on other misconduct of a sexual nature or on assault. This change would apply retroactively, even if the existing limitation period had already expired.
The proposed changes would take effect on July 1, 2016 or six months after the Bill receives Royal Assent, whichever is later. Employers will therefore have a minimum of six months to bring its workplace policies and practices into compliance.
Bill 132, if passed, would also result in notable amendments to the Compensation for Victims of Crime Act, the Ministry of Training, Colleges and Universities Act, the Private Career Colleges Act and the Residential Tenancies Act, 2006. These revisions would serve to strengthen existing provisions related to sexual violence and harassment in workplaces, on campus, in housing and through the civil claim process.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at: http://www.mathewsdinsdale.com/news-events/in-a-flash/
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