On October 27, 2015, the Ontario government tabled its Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) 2015 (the “Act”).  The Act amends the Occupational Health and Safety Act, and in particular, those provisions brought in through Bill 168 in 2010 that set out employers’ obligations to have a program and a policy to protect workers from what was termed  “workplace harassment” and workplace violence among other things.  At that time, “workplace harassment” was defined as “engaging in 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”.

Under the Act, the definition of “workplace harassment” will expand to include “workplace sexual harassment” which has been defined as follows:

• 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.

The Act is two readings and a proclamation away from becoming law, and so it appears that nothing will change until sometime in 2016.  However, when these changes do become law, it is clear that workplace investigations will suddenly become much more important.

To begin, the Act creates a new statutory duty for employers to investigate “incidents and complaints” of workplace harassment.  Here is the language of the first two subsections of the new section 32.0.7:

32.07(1) To protect a worker from workplace harassment, an employer shall ensure that,

(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;

(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker for the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;

For employers, this means that it will be essential to have the internal competencies to conduct workplace investigations. These competencies will need to extend to conducting the investigations themselves, but also knowing when to conduct them. Here, it should be noted that the language contained in the Act refers to “incidents and complaints” and so to comply, employers will need to understand what types of information will trigger an investigation when that information is not a formal complaint.  Moreover, it is crucial that those conducting investigations within the employer’s organization understand how to analyze the information that they receive as part of the workplace investigation, write a proper report, and how to use that report to inform the parties in writing of the outcome. This is all consistent with recent workplace investigation case law.

Under this new regime, it will be very important for internal investigators to not only understand what types of behaviours constitute “workplace sexual harassment” but also the unique dynamics of this type of behaviour in the workplace, and the challenges these dynamics pose for investigators.  For example, in these cases, there is often no eyewitness to the behaviour, the complainant may not report the behaviour for many years, the complainant may have gone along with the behaviour not because he or she truly consented, but because it was just easier, and the investigator may need to decide based on credibility alone.

There is real meat to this section because it is backed up by what we think is the most striking new element of the Act; that is the inclusion of a provision whereby an inspector can order an employer to conduct an investigation by a third party.  Here is what the new section 55.3 says:

55.3(1) An inspector may in writing order an employer to cause an investigation described in clause 32.07(1) (a) to be conducted at the expense of the employer, by an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a written report by that person.

It is unclear from the Act under what circumstances an inspector might do this.  However, based on inspectors’ orders since the introduction of Bill 168, we can imagine this happening in a number of ways. The first is after an employee made his or her employer aware of an incident of workplace harassment – remembering that this will now include workplace sexual harassment – and the employer failed to investigate. That employee could contact the Ministry of Labour, indicate that the employer had not complied with section 32.07(1) and this contact would trigger an inspection. This is consistent with the Ministry of Labour’s actions to date in which they have investigated numerous employee-based complaints involving employers’ failing to comply with their obligations with respect to workplace harassment and violence, and have issued a huge number of orders in this regard.  If the inspector was of the view that the circumstances were such that an investigation should have taken place, he or she could order one.

Another possible way in which an inspector might order an investigation is when an investigation occurred, but the employee believes that it was flawed and that it was not conducted in a manner consistent with the requirements of the Act. If the inspector found that there were significant investigation errors – for example the person undertaking it was biased, or failed to interview the necessary parties – an order to investigate using a third party might be made.

There is one other less obvious scenario we can imagine where an investigation might be ordered – that is if the Ministry of Labour conducted a blitz in a particular sector. These blitzes have occurred a number of times since the introduction of Bill 168. They are a proactive way to ensure that employers are in compliance with their obligations under the Occupational Health and Safety Act. If the Ministry adopts the practice of blitzes to enforce the new provisions regarding workplace sexual harassment, we think that it is entirely plausible that during such a blitz, an inspector might become aware of problematic behaviour that had gone underground and not been reported. Imagine if the blitz occurred in a sector that is thought to be highly problematic in terms of harassment, such as the restaurant industry.  In those circumstances, we could imagine the inspector ordering an investigation.

It is likely that as the Act passes through the reading stages there will be changes to it. Assuming that these two provisions regarding investigations remain, employers will need to tighten up their internal workplace investigation practices and improve the quality of the investigations performed under them.

Janice Rubin

About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.