The Ontario government recently introduced Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. This bill follows the government’s March 2015 action plan to reduce sexual violence and harassment.
Bill 132 is an omnibus bill that, if passed, amends six Ontario statutes with respect to sexual violence, sexual harassment, domestic violence and related matters.
Bill 132’s proposed amendments to the Occupational Health and Safety Act (“OHSA”) are of particular importance to condominium corporations as employers. The provisions define “workplace sexual harassment,” broaden the definition of “workplace harassment” to include workplace sexual harassment and impose additional obligations on employers regarding workplace harassment policies, programs and investigations.
Proposed Amendments to the OHSA
Bill 132 proposes the following amendments to the OHSA:
- Defining “workplace sexual harassment” to mean 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, whether the course of comment or conduct is known or ought 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.
- Adding workplace sexual harassment to the definition of workplace harassment.
- Clarifying that reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
- Requiring employers to enact workplace harassment policies and programs that include:
- measures and procedures for reporting workplace harassment incidents to third-party persons where the employer or supervisor is the alleged harasser;
- set out how workplace harassment incidents or complaints will be investigated and dealt with; set out how information obtained about a workplace harassment incident or complaint will be kept confidential unless disclosure is necessary for the purposes of investigating or taking corrective action or is otherwise required by law; and
- set out how the parties to the workplace harassment incident or complaint will be informed of the results of the investigation or of any corrective action.
- Requiring employers to ensure that an investigation is conducted for workplace harassment incidents and complaints; the parties to the workplace harassment incident or complaint are informed in writing of the results of any investigation or of any corrective action; and that workplace harassment policies and programs are reviewed as often as necessary, but at least annually.
- Conferring authority on a Ministry of Labour inspector to order an employer to cause an investigation of workplace harassment to be conducted by a third-party person.
Impact on Condominium Corporations as Employers
As employers, condominium corporations will need to update their existing mandatory workplace harassment policies and programs to accord with Bill 132’s proposed changes to the OHSA. For condominiums that did not enact Workplace Violence and Harassment policies in response to Bill 168 (which became law in 2010), the time to address both bills is soon upon us.
Condo corporations should be aware that the proposed OHSA amendments concern both “incidents” and “complaints” of workplace harassment. This specificity speaks to the level of diligence that must be exercised in addressing workplace harassment.
The bill also crosses between work life and private life of employees. For example, condo managers and boards that become aware of workplace harassment (e.g. a super harassing an owner) must seek resolution even if a complaint is not registered. This harkens back to Bill 168 (enacted in 2010) which created the uncomfortable obligation for employers to potentially intervene in private domestic disputes between live-in employees (superintendents) and spouses or partners. This uncomfortable trend continues and the complexity deepens.
All employers will need to train internal investigators how to conduct investigations, commission reports, and communicate with the parties to a workplace harassment incident or complaint.
As of March 1, 2016, Bill 132 was ordered for Third Reading in the Legislative Assembly of Ontario. If passed, the provisions of Bill 132 concerning the OHSA will come into force on the later of six months after the day the legislation receives Royal Assent and July 1, 2016.
Gardiner Miller Arnold LLP’s precedent Workplace Violence and Harassment Policy to address Bill 168 from 2010 already contains the necessary components to address Bill 132’s required updates, and our lawyers would be pleased to help condo boards and managers adopt and implement this policy in your community.