Drawing the Line

On September 8, Bill 132, or the Sexual Violence and Harassment Action Plan Act, which strengthens laws against sexual violence and harassment in workplaces, on campuses, in housing and through the civil-claims process, will take effect in Ontario.

The bill, which received Royal Assent at the Legislative Assembly of Ontario on March 8, amends the Occupational Health and Safety Act (OHSA) by broadening the definition of workplace harassment to include sexual harassment. It also introduces a swath of new employer obligations related to developing a written program to implement a workplace-harassment policy, investigating incidents and complaints of harassment and empowering labour-ministry inspectors to order qualified third parties to investigate harassment complaints and provide written reports — all at the employer’s expense.

“There will be an obligation on employers to take every reasonable effort to protect workers from harassment, including sexual harassment, that is not in now,” says Jeremy Warning, a partner with law firm Mathews, Dinsdale and Clark LLP in Toronto.

Ground sentiments seem approving of the province’s tougher stance against harassment of all shades and hues. Antoinette Blunt, president of Ironside Consulting Services Inc. in Sault Ste. Marie, Ontario, thinks that the bill is warranted. “Any employee in an organization who feels they may be at risk, or have experienced sexual violence or harassment, needs to understand the employer will look into the situation and undertake an investigation.”

Kim Stanton, legal director with Women’s Legal Education and Action Fund in Toronto, hopes that these legislative changes will prevent and ultimately help put an end to harassment at work. “Sexual harassment is a form of sex discrimination, and it is critical for women to have equal opportunity in the workplace. Sexual harassment is detrimental to that goal.”

Plamen Petkov, vice president (Ontario branch) of the Canadian Federation of Independent Businesses (CFIB) in Toronto, says the organization supports the objectives that this legislation seeks to achieve, which is to reduce workplace harassment and violence. “Those are things that have absolutely no place at the workplace and, where those occur, should be dealt immediately with,” he says. “Our focus is on how we get there, and compliance here is a big part. That is where we have a few question marks and a few concerns.”

Covering new grounds

One of the changes that Bill 132 has brought about is expanding the definition of workplace harassment to include sexual harassment, defined as “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 “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.”

“We are now seeing protective ground being included in the definition of workplace harassment,” Warning says.

For Norm Keith, partner at law firm Fasken Martineau DuMoulin in Toronto, the introduction of Bill 132 simply means that sexual harassment will be regarded as an occupational health and safety issue from here on.

A subsection has also been added to the Act to indicate 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.

“There is already workplace-harassment legislation,” Sandra Miller, vice president of innovation and knowledge mobilization with Workplace Safety and Prevention Services in Mississauga, Ontario, says in reference to the existing Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace, which took effect on June 15, 2010. The bill strengthened worker protections by requiring employers to have policies and programs in place to deal with occupational violence and harassment, as well as domestic violence that may occur at work.

“Bill 132 adds to that legislation, particularly as an emphasis around sexual harassment,” Miller says.

One additional requirement brought about by Bill 132 is that there needs to be an investigation into workplace-harassment complaints or incidents, which is not prescribed in Bill 168. That means in an employer’s action plan, “they have to be explicit about how their investigation practices are going to be, and when they have actually done an investigation they have in writing — respecting a lot of confidentiality — they have to be able to report out to the workers what is going to happen as a result of that investigation,” Miller explains.

According to Warning, one “very profound change” in how harassment is being dealt with in Ontario workplaces is the provision of a tremendous deal of oversight — if not involvement — of the Ministry of Labour in the investigative process under Bill 132.

“If you look at existing obligations, I think it is fair to describe them as reactive rather than proactive,” he says, pointing out that the OHSA currently does not create specific obligations on employers to prevent harassment.

“If you contrast them to what is required for workplace violence, there is no obligation to audit or assess your workplace for risks of workplace harassment, there is no obligation to prepare measures and procedures to protect workers from workplace harassment and there is no right to refuse work under the basis of workplace harassment.”

As well, the provincial labour ministry currently does not investigate the merits of a harassment complaint.

With the new legislation, employers will have to consult the joint health and safety committee when developing and maintaining a written program to implement a workplace-harassment policy. This written program, which has to be reviewed at least annually, should include the following:

— Provide measures and procedures for workers to report incidents of harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
— Set out how incidents or complaints of workplace harassment will be investigated and dealt with;
— Establish how the information obtained about an incident or complaint will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law; and
— Indicate how a worker who claims to have experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been or will be taken.

Small shoulders, big burden

Among the new provisions stipulated in Bill 132, the two clauses that ignite the most concerns relate to the requirement that employers must investigate harassment complaints and incidents in a manner that is appropriate in the circumstances and that provincial labour-ministry inspectors have the authority to compel an employer to engage an impartial and qualified third party to conduct an investigation and produce a written report paid for by the employer.

“The ministry may well insert itself, and insert itself quite deeply, into your process or investigation of harassment complaints,” Warning cautions. “The ministry terms that if any of that falls short, they have the power to issue an order to correct that, and they have the power to prosecute potentially for that violation.” This creates the potential for the employer to incur significant costs as a result of third-party investigations mandated by the labour ministry.

Petkov of the CFIB, which represents 42,000 members in Ontario, says investigations by a third party could be, in some cases, completed in a day. “Sometimes, it is more complex, it could take months. There is absolutely no indication that there is a cap on expenses.”

Employers ordered to commission third-party investigations into harassment cases will incur expenses that they are in no position to budget upfront, Petkov adds, stressing that this will be “very tough” for small businesses. “You have a limited budget to begin with, and if extra cost is added to it, you obviously have to figure out how to find the money from somewhere else,” he says.

As well, Bill 132 does not indicate who that “impartial person possessing such knowledge, experience or qualifications” capable of conducting third-party investigations might be. According to Blunt, who has been involved in workplace investigations over the past few years, an investigation is an intensive and consuming process.

“You have to understand how to undertake the interview process, how to find the evidence, how to question both individuals who feel they have been victimized or people who are alleged to be harassers, as well as potential witnesses. So there is quite a bit of skill involved in undertaking that process.”

Blunt thinks it is critical that the provincial labour ministry provide a list of people or consultants who are qualified to conduct these investigations. Some guidelines on the circumstances that could create a situation in which an inspector would order a third-party investigation would also be helpful to employers, she adds.

Keith suggests that Bill 132 could open the door to more litigation. “Employers may be open to liability from faulty investigations, for example, not investigating thoroughly and not following requirements set out in the OHSA.”

To prevent that situation from arising, he advises employers to ensure that their internally appointed investigators are capable of conducting an independent investigation in a thorough, timely, discreet and sensitive manner and that they should be trained in harassment-investigation techniques. “The investigator must also be impartial and unbiased,”  Keith adds.

Documentation of the investigative process will also become more important. “Bill 132 has the potential to open up a significant amount of litigation simply over the investigation process,” Warning suggests. “You will have to think about proof that you have conducted an investigation that is appropriate in the circumstances.”

Limits of confidentiality

One area in the bill that presents ambiguity is the requirement that employers communicate the results of an investigation and the corrective actions taken against the perpetrator. “How much do you have to disclose?” asks Cheryl Edwards, partner at Mathews, Dinsdale and Clark LLP in Toronto. “Is it enough to say, ‘We are done, we completed the investigation on such a day,’ or is more going to be required?”

Striking a balance between keeping the involved parties informed of the investigation results and the corrective actions taken without compromising confidentiality presents a challenge. “This isn’t just a health and safety issue; this is going to land squarely in the human-resources department of the organization,” Edwards suggests.

Keith clarifies that the expectation would be for employers to share information about the complaint only with people who need to know about it.

“For example, the person the complaint is against will need to know about the particulars of the complaint to respond to it. Witnesses will need some information about the incidents they are said to have been involved in or allegations they have knowledge of. Investigators, mediators, advisors and any other persons involved with the complaints process should protect confidentiality and privacy and maintain the security of all documents related to complaints, including contents of meetings, interviews and investigation reports.”

Keith cautions against assuming that privilege will always apply to investigation reports and communications between a lawyer and the client. A case in point is North Bay General Hospital v. Ontario Nurse’s Association 2011, in which the hospital engaged a solicitor to investigate a workplace-harassment complaint. When the lawyer found evidence to support the complaint, the employer took disciplinary action against the harassing employee, who launched a grievance, claiming that the discipline was unjust and retaliation for the employee’s past union involvement.

The union representing the disciplined employee requested that the hospital make the report and communications relating to the investigation available to the union — a request that the hospital promptly rejected, citing solicitor and client privilege.

The matter was referred to arbitration, which ruled in the union’s favour. The decision regarded the investigation report and the related communications requested by the union relevant in light of the fact that the union alleged that the hospital’s disciplinary action was motivated by the grievor’s past union involvement. As such, the union is entitled to consider all of the hospital’s actions in that respect.

As well, the arbitrator determined that the hospital had retained the lawyer as an independent investigator, rather than as a solicitor. “I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer,” the decision concludes.

Clearing the air

As the new bill looms on the horizon, just how ready are employers in meeting a higher threshold?

For Petkov, the silence from its members is telling. “We haven’t received calls on this just yet. It is a brand new legislation; it just passed a couple of months ago,” he says. “But to me, this indicates that the vast majority of employers — not just small but also medium-sized or large employers perhaps — are not quite aware of what this legislation will mean to their businesses.”

Petkov says he hopes that the provincial government will communicate this bill more broadly and outline clearly what the government’s expectations are of employers across the province. “Afterwards, every employer needs to sit down and figure out how this applies in their individual context in the business environment and develop policies and procedures that need to be in place before September.”

Small businesses are usually most affected by any legislation, “and I don’t think this one will be an exception,” Petkov adds. Unlike larger companies that have more resources, such as a human-resources department or a group of people tasked to look into such issues and what needs to be done to stay compliant, “our constituents are small-business community,” he notes. “It is also very important to be clear and transparent on how to get there if this legislation is going to succeed.”

But Miller does not think that the bill imposes a burden on employers, big and small alike. “I think it adds clarity to the legislation, so they know exactly what is expected of them under the law.”

Clarity will become a big part of businesses’ written programs on preventing workplace harassment, in view that the changes brought about by Bill 132 relate primarily to an employer’s workplace-harassment program, specifically their protocols for investigating complaints and incidents.

“Employers should review their harassment-prevention programs to ensure they will be meeting the new provisions,” Keith advises.

He adds that it is not sufficient to state that incidents will be investigated or that information will be kept confidential. “Your program now needs to state how these things are going to happen. Exactly how will you keep information confidential? What is your documented process for investigating?”

Keith also recommends that employers provide training to anyone whom they expect to conduct investigations. “Employers may be held vicariously liable for errors made by investigators.”

He cites the 2010 Chuvalo v. Toronto Police Services Board decision by the Human Rights Tribunal of Ontario, a case that centred around a sexual-harassment complaint lodged by a constable, who was awarded $20,000 for suffering harassment at work and being subject to reprisal for making an internal complaint with the Board. The adequacy of the employer’s response to the complaint and the employer’s appointment of an investigator who was not sufficiently trained in handling such matters were cited in the decision as factors that “placed an unnecessary burden” on the plaintiff.

Warning advises employers to review their anti-discrimination policies to confirm that they address sexual harassment. They should also identify existing caps and determine what changes need to be made, assign someone or a group of people responsible for implementing those changes and ensure that there is a process for consulting the joint health and safety committee prior to September 8. Obtaining any resources that are published by the Ontario government and watching for the Code of Practice for harassment prevention or complaints under the OHSA also help.

According to Miller, the Ontario Ministry of Labour is developing a Code of Practice outlining what is expected of employers with respect to Bill 132. “They are indicating that the guideline will be available in August.”

In addition to reviewing existing workplace-harassment policy, communication through the rank and file is key. “It is very important to talk to everyone in the organization, all of the managers as well as the employees about the change and the fact that you will have policies and procedures to support this and do some training upfront, so people are aware of it and understand it,” Blunt says.

Asking questions can be a good start to identify where the gaps are. “What kind of training have you provided to your manager and staff? Do you have requirements for people to behave appropriately in the workplace, to treat everybody with dignity and respect?” Blunt asks. “So get yourself into a very proactive mode to try and ensure that your workplace is free from any kind of discrimination or bias by teaching people these things, providing programs, training and ongoing support to managers and employees on an ongoing basis, so you don’t find yourself in this situation.”

On the horizon

Bill 132 may not be the be-all-and-end-all of new amendments to the OHSA. Employers should be prepared for Bill 177, Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016, which received its second reading on March 10 — two days after Bill 132 received Royal Assent. If passed, Bill 177 will amend the Employment Standards Act to insert a new provision that will require an employer to consider changing the hours and work location if an employee is a victim of domestic or sexual abuse.

According to Warning, it could open the door for Ministry of Labour inspectors to look in and determine that there may be a reasonable precaution for a general duty clause for the employer to change the hours or location of work as means of protecting an employee’s health and safety.

For Blunt, Bill 132 provides assurance to employees that if they have valid workplace-harassment complaints, companies are legally obligated to look into them. “My employers simply can’t brush it aside. So it does put more parameters around the legislation and becomes more restrictive for employers.”

One thing is certain: Bill 132 will require employers to be more proactive in developing training programs and implementing policies and specific practices to prevent and address workplace harassment. “Whatever they are doing right now, they have to do more in terms of meeting the requirements of this bill,” Petkov says.

For Stanton, the standards prescribed by the bill are not higher; they have simply been rendered more specific. “Previously, there was inconsistency as to whether or not employers needed to inform the parties about the results of an investigation. Now, the revisions make it clear that employers need to inform the worker and the alleged harasser of the results of the investigation and the corrective action in writing.”

Jean Lian is editor of OHS Canada.