By Ashley Lattal

On October 27, 2015, the Ontario government introduced Bill 132 (the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. If passed, it will amend a variety of legislation in relation to sexual violence, sexual harassment, domestic violence, and related matters. It is part of Ontario’s 3-year action plan announced in March 2015 to address sexual violence and harassment.

Bill 132 will have particular significance for workplaces, educational institutions, and landlords. Most of the changes will take place six months from Royal Assent or July 1, 2016, whichever is later. Key provisions of Bill 132 that will impact upon employers and educational institutions are set out below.

Amendments to Occupational Health and Safety Act (“OHSA”): expanded definition of harassment and additional employer policy requirements

“Workplace sexual harassment”

The definition of “workplace harassment” under the OHSA will be amended to include “workplace sexual harassment”, which will be defined as:

Engaging in a course of vexatious comment or conduct against a worker 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
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.

The definition of “workplace harassment” will be further amended to clarify that reasonable management or supervisory actions do not constitute workplace harassment.

Additional Content Requirements for Harassment Program and Duties regarding Investigations

Reporting. Policies will have to include reporting measures and procedures for situations where an alleged harasser is the supervisor or employer.
Process. The policy must indicate, “how incidents or complaints of workplace harassment will be investigated and dealt with”. This is very similar to the old language (“set out how the employer will investigate and deal with incidents and complaints of workplace harassment”). This subtle change in language may be designed to clarify that an external, as opposed to an internal, investigator may be appropriate.
Preserving Confidentiality. Policies will have to set out how information about an incident or complaint of harassment, including identifying information about those involved, will not be disclosed unless necessary to an investigation or taking corrective action, or is required by law.
Informing Parties of Results and Corrective Action. Employers will now be obliged to inform the parties in writing as to the investigation results and any corrective action resulting from the investigation.
Appropriate investigations. Employers will have a duty to conduct an investigation that is “appropriate in the circumstances” for incidents or complaints of harassment. The word “appropriate” is not included in the current OHSA, though investigations into incidents or complaints of harassment are required. It will be interesting to see how this additional language will be interpreted and applied. It appears to be designed, at least in part, to ensure that investigations will be conducted by trained individuals and will be tailored to address the seriousness of particular complaints.
Annual review. The harassment program must be reviewed at least annually.

Ministry May Order Investigation. In what appears to be an effort to ensure compliance with an employers’ obligation to appropriately investigate, a Ministry inspector may order that an employer, at its own expense, engage a third party impartial investigator (with the knowledge and expertise specified by the MOL Inspector) to conduct an investigation into workplace harassment, which would include the provision of a written report.

Educational Institutions to Implement Sexual Violence Policies and Provide Data

Standalone Sexual Violence Policy. The Ministry of Training, Colleges, and Universities Act will be amended to require colleges, universities, and private career colleges to have standalone policies that address “sexual violence”, which is broadly defined in the legislation (and includes harassment, assault, stalking, indecent exposure, and voyeurism).
Contents of the Sexual Violence Policy. The policy must set out a process for responding to and addressing incidents and complaints of sexual violence involving enrolled students. Student input must be considered in developing or reviewing the policy. Review must occur every three years.
Collection and Submission of Data around Sexual Violence. Bill 132 will also impose on colleges, universities and private career colleges obligations regarding collection and submission of data as requested by the Minister relating to specified information (such as reports of sexual violence and supports and services relating to sexual violence).

In summary: How will Bill 132 Impact Workplaces and Educational Institutions if enacted?

The proposed amendments to the OHSA expand employers’ obligation to create a workplace harassment policy that includes workplace sexual harassment. It also imposes certain new requirements for investigations of workplace harassment, including addressing reporting procedures where supervisors are involved and reporting in writing the investigation results and corrective action to the parties.
Employers will have to carefully consider how to apply some of the new provisions, including how they will ensure “appropriate” investigations are conducted, how they will protect confidentiality, and to whom employees can report complaints when the supervisor or employer is the subject of a harassment complaint.
In determining how and when to investigate complaints, employers will need to bear in mind the Ministry’s power to order them to retain qualified external investigators to conduct investigations at the employers’ expense.
Employers will have to amend their harassment policies in order to incorporate their new duties and processes. They will also have to provide training on the amended policies to employees, including how to identify potential workplace sexual harassment. Additionally, employers will need to ensure that any internal personnel conducting investigations have the necessary competencies to conduct investigations.
Educational institutions will need to implement policies dealing with sexual violence that take student input into account. They will also need to consider how they will go about collecting data about sexual violence issues on their campuses to comply with potential reporting obligations.

It seems likely that the implementation of Bill 132 will increase sensitivities and awareness regarding sexual harassment in the workplace, as well as workplace harassment more generally (as Bill 168 did). This is likely to lead to an increase in complaints, which employers will need to be prepared to properly investigate and address.

Ashley Lattal