Will the recently proposed changes to the Ontario Occupational Health and Safety Act finally bring about the workplace violence and harassment protections that so many believed would be implemented as a result of “Bill 168?” It’s possible.
For years I have been critical of the actual effects of the changes to the law brought about by Bill 168. Heralded by many at the time as a necessary change to the law, the experience of the interpretation and implementation of those changes has been grossly underwhelming.
Now the Ontario government is proposing further changes to the law by way of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The Bill passed first reading in the Legislative Assembly of Ontario on October 27, 2015.
The Problem with Bill 168
When Bill 168 was first proposed and then implemented into law, several people believed that the law essentially banned workplace violent and harassment. It did not. In fact, what Bill 168 actually did was make very limited changes to the Ontario Occupational Health and Safety Act.
While Bill 168 did introduce to the OHSA definitions of “workplace violence” and “workplace harassment”, the law did little to prevent the actual occurrence of either; a fact well known by far too many Ontario workers.
Essentially, what Bill 168 did was mandate that employer create policies and procedures with respect to workplace violence and workplace harassment. While a great first step, what the law lacked was any requirement of a substantive outcome from those policies and procedures.
This gap in the law did not go unnoticed and the Ontario Labour Relations Board seemed unwilling to fill it. As cases such as Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) demonstrated, the Board seemed hamstrung by the weaknesses in the law. Even in the case of Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB), which arguably did more to advance the state of the law than any other case from the Labour Relations Board, the law came up short, with the Vice-Chair in that case holding:
 …Nowhere in Part III.0.1 or elsewhere in the Act are employers explicitly obligated to provide a harassment free workplace, at least with respect to how broadly that term is defined in section 1 of the Act.
In short, the law simply failed to do what many hoped that it would.
The Changes Proposed by Bill 132
Bill 132 clearly seeks to, amongst other things, fill some of the gaps left by Bill 168. With respect to the proposed changes to the OHSA, here is some of what Bill 132 proposes to do:
1. Amend the definition of “workplace harassment” in subsection 1 (1) of the Occupational Health and Safety Act, by repealing the current definition and replacing it with the following:“workplace harassment” means,2. Add the following definition to section 1(1) of the Occupational Health and Safety Act:
(a) 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, or
(b) workplace sexual harassment;“workplace sexual harassment” means,3. Add the following subsection to section 1 of the Occupational Health and Safety Act:
(a) 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
(b) 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;4. Repeal clauses 32.0.6 (2) (b) and (c) of the Act and replace them with the following:
(4) A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.5. Repeal section 32.0.7 of the Act and replace it with the following:
(b) include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
(c) set out how incidents or complaints of workplace harassment will be investigated and dealt with;
(d) set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, 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;
(e) set out how a worker who has allegedly 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 taken or that will be taken as a result of the investigation; and
(f) include any prescribed elements.6. Add new section 32.0.8:
Duties re harassment
32.0.7 (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 of 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;
(c) the program developed under section 32.0.6 is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment required under clause 32.0.1 (1) (b); and
(d) such other duties as may be prescribed are carried out.32.0.8 An employer shall provide a worker with,
(a) information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment; and
(b) any other prescribed information.
What the Changes Would Do
Of the changes to the Occupational Health and Safety Act proposed by Bill 132, the most substantive ones would be those to sections 32.0.6 and 32.0.7. Whereas presently the law only requires employers to have policies and programs to enforce those policies, as mentioned, the law does not necessitate any particular outcome. It has been ambiguous for some time whether employers were even statutorily required to investigate such complaints. Proposed paragraph 32.0.7 (1)(a) leaves no ambiguity as to whether an investigation must be conducted.
Demonstrably these changes, if enacted into law, will have serious ramifications for both employers and employees. For employees, the changes would once again signal a belief that issues of workplace violence and harassment will be taken seriously by the law. For employers, the changes will mean a lot more due diligence, and expense, will be required when responding to allegations of workplace harassment.
What is Missing from the Law
A major gap in the law when Bill 168 was passed was the failure to amend the reprisal provisions of section 50 of the OHSA to protect workers who made failed complaints of harassment. For years it has been common for employees to make complaints of workplace harassment only to find oneself fired as a result. Employees who complained that such a course of action amounted to an act of reprisal often found themselves surprised by the decisions of the Labour Relations Board.
Bill 132 does not propose to strengthen or in any way amend the reprisal provisions of the OHSA. And while the same may not be necessary given the other changes, one would have thought that express reference to the inability of an employer to terminate an employee for making a complaint in accordance with the law would have been at least proposed for consideration at committee.
It is important to remember that Bill 132 has only passed first reading in the House. While a government-sponsored bill in a majority parliament, this bill is a long way from becoming law.
For now, those of us interested in the law will have to watch to see how things play out.
To reach the author of this blog, Sean Bawden, email email@example.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.