Ontario including sexual harassment in OHSA

Cheryl A. Edwards
The Ontario government recently signalled its commitment to ensure employers have new, specific occupational health and safety legal obligations to prevent sexual harassment and violence. The plan, It’s Never OK: An Action Plan To Stop Sexual Violence And Harassment, was announced in March.

It indicates the government intends to do its part to establish an Ontario where everyone lives in safety and is free from the threat, fear or experience of sexual violence and harassment.  The plan includes a number of commitments that are specific to the Occupational Health and Safety Act (OHSA) and some that go far beyond commitments related to OHS legislation and enforcement:

• Introduce legislation to strengthen provisions related to sexual violence and harassment in the workplace, on campus, in housing and through the civil claim process. No details of whether this will be restricted to OHS or human rights legislation or other measures have been provided.

• Enhance workplace laws to strengthen enforcement under the OHSA, including enactment of a definition of sexual harassment, a specific employer duty respecting harassment and establishing a code of practice to help employers develop stronger sexual harassment policies. (The announcement so far is limited to harassment, not violence.)

• Numerous additional initiatives to create public awareness to challenge current attitudes and behaviours, including updating health and physical education curriculum for students; developing tools and best practices to support compassionate response from law enforcement authorities; strengthening supports provided by hospitals; and creating a pilot program to provide free, independent legal advice to sexual assault survivors whose cases are proceeding toward a criminal trial.

Current obligations

Effective June 15, 2010, provisions known colloquially as Bill 168 added definitions of workplace violence and harassment into the Ontario OHSA. It broadly defined harassment as “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.” It is not tied to personal characteristics or grounds such as sex, race, sexual orientation or other matters that are protected grounds, for example, under provisions of human rights legislation. In doing so, the OHSA arguably already includes a broad and all encompassing harassment definition including sexual or any other type of personal harassment.

Under the current legislation, Ontario employers must take several steps including the following:

• Develop a written harassment policy and review the harassment policy at least annually.

• Develop and implement a workplace harassment program (requires a procedure for workers to report incidents of harassment to a supervisor or the employer and set out means by which the employer will investigate).

• Provide training to workers on the harassment policy and program.

What to expect

Gazing into a crystal ball is always difficult. It seems clear, however, that certain amendments to the Ontario OHSA are likely and several others are possible.

New definition: There will likely be a new and specific definition of “sexual harassment” added to the OHSA. How a clear definition will be arrived at — and how this will improve upon the obligations of employers or future worker rights when Ontario already has the most expansive definition of harassment possible — remains to be seen. Perhaps there could be some new rights or remedies related to this particular type of harassment. It is worth noting that two jurisdictions, Saskatchewan and Manitoba, define harassment as related to prohibited grounds such as race, creed, religion, colour, sex and sexual orientation (without defining sex or sexual harassment). 

New duty to protect workers: Only one jurisdiction in Canada, Saskatchewan, clearly sets out an obligation to ensure, as far as is reasonably practicable, that workers are not exposed to harassment respecting any matter or circumstance arising out of employment. Ontario’s action plan suggests the OHSA amendments could include a new employer obligation to “make every reasonable effort to protect workers from harassment, including sexual harassment in the workplace.” It still remains unclear how a specific obligation to protect workers from sexual harassment would be an improvement on a general duty to protect all workers from all types of harassment. No mention is made of supervisory duties to protect workers or worker duties not to harass co-workers.

Right to refuse: Something that has not been mentioned in the action plan but will no doubt arise as an issue is the right to refuse. The Ontario OHSA does contain a specific right to refuse to work if a worker believes that workplace violence is likely to endanger her. No corresponding refusal right exists in Ontario or elsewhere for a worker who reasonably believes he is subject of an unwanted course of conduct including any type of harassment.

Enforcement provisions: The action plan suggests that an enforcement team of inspectors trained to address complaints of workplace harassment, including sexual harassment, will enforce the new harassment provisions. OHS inspectors have broad powers to issue compliance orders and stop work orders. Prosecution, the most serious enforcement mechanism, has not to date been used related to harassment, although several Canadian employers have faced prosecution for failure to protect workers from workplace violence.