Or How Bill 132 will affect You

 

Here is a mouthful: “Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment). This is the title of Bill 132, part of the Government of Ontario’s Action Plan unveiled in March of 2015 to stop sexual violence and harassment. The entire Action Plan can be found at http://www.ontario.ca/document/action-plan-stop-sexual-violence-and-harassment.

For many years in Ontario (and most other provinces), sexual harassment in the workplace could only be dealt with through the remedies available under the Human Rights Code. If an act of harassment was particularly egregious – really tantamount to a physical act of sexual violence – there were civil and criminal assault proceedings and possibly proceedings under the general health and safety provisions of the Occupational Health and Safety Act.

Avenues opened up to victims of sexual harassment and violence when in 2008 the Human Rights Code was overhauled. Breaches of the Code could be piggy-backed onto a civil proceeding in a court, typically a wrongful dismissal action. Now courts could go beyond the usual remedies of only being able to award money for compensation of sexual harassment or sexual violence and impose the broader remedies available under the Code such as forcing the employer to apologize, to ensure that offending employees stop their behaviours , to conduct anti-harassment and anti-discrimination training and to put in place the anti-harassment and anti-discrimination policies.

Victims were also offered more safeguards when the Occupational Health and Safety Act was amended in 2010 to add what is still commonly referred to as Bill 168 – the Workplace Violence and Workplace Harassment provisions. It was the first piece of legislation that actually compelled employers to perform risk assessments of potential violence in the workplace (all violence, not just sexual violence), institute programs and policies for workplace violence and harassment (all harassment, not just sexual), give training to employees with respect to both violence and harassment, and – most importantly – develop specific procedures to enable both the reporting and investigation of employee complaints of harassment. This change forced employers to institute specific policies with respect to workplace violence and harassment and do perform mandatory training in the workplace.

However, these 2010 changes in the Occupational Health and Safety lack teeth. If an employee is harassed, the Ministry can censure the employer for not having the proper policies or training in place. However, the Ministry cannot make a decision on whether or not an employee was actually harassed, and if there was harassment, what that employee should entitled to as a remedy. The Ministry of Labour can only compel the employer to put the policies and training into place. There is little recourse under this Act to remedy actual violence against or harassment of an employee.

Bill 132 enhances these protections against violence and harassment specifically under the Occupational Health and Safety Act by:

  • expanding the definition of “workplace harassment” to specifically include “sexual” harassment. This definition matches the current case law;
  • mandating an investigation of complaints and not just policies pertaining to investigation;
  • directing that the results of an investigation and of any corrective action imposed on the perpetrator be provided to the employee in writing;
  • allowing the Ministry of Labour to order an investigation (including an investigation by an independent investigator) of employee complaints, at the expense of the employer.

This latter requirement can create a major expense for an employer as investigations can cost thousands of dollars. Therefore, it is even more imperative that employers do whatever they can do to train employees and properly monitor workplace harassment and violence in order to avoid incidents that will result in a complaint.

Interestingly, Bill 132 also codifies the current case law and legislates that an employer’s normal management and direction of employees will not constitute harassment. Practically, this usually pertains to performance review and management of an underperforming employee.

The case law in Ontario and across Canada is getting tougher on perpetrators of sexual violence and harassment. Awards in both the courts and the Tribunals are trending upwards – sharply upwards. This proposed amendment to the Occupational Health and Safety Act will further enhance a victim’s rights to redress in a workplace and consequently places additional responsibilities on an employer to ensure that it keeps its employees healthy and safe. Public hearings with respect to Bill 132 are being held across Ontario next week. And workplaces are not the only target of the Government’s Action Plan. This plan reaches beyond the workplace to housing, campuses, schools, school curriculums, victims and is aimed at changing, in the words of the Premier, “deep-rooted attitudes and behaviours “ that contribute to sexual violence and harassment.