Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends 6 | April 27, 2016 effect on July 1, 2016: 1. e definition of "workplace harass- ment" in ss. 1(1) of the OHSA will be amend- ed to include "workplace sexual harassment." 2. e OHSA will provide a definition of "workplace sexual harassment" as follows: "(a) engaging in a course of vexatious com- ment or conduct against a worker in a work- place because of sex, sexual orientation, gen- der identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwel- come, or (b) making a sexual solicitation or advance where the person making the solicita- tion 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 ad- vance is unwelcome." 3. Bill 132 clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or workplace is not workplace harassment. 4. Employers will still be required to de- velop and maintain a program to implement against workplace harassment. However, they must now consult with the joint health and safety committee or an OHS representa- tive and the program must be in writing. 5. Employers will be required to include additional elements in their written program on workplace harassment, as follows: • Measures and procedures to report inci- dents of harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser. • How incidents or complaints of harass- ment will be investigated and addressed. • How information obtained about an in- cident or complaint of workplace harass- ment, including identifying information about anyone involved, will not be dis- closed unless the disclosure is necessary for the purposes of investigating or taking corrective action, or is required by law. • How a worker who has allegedly experi- enced workplace harassment and the alleged harasser, if he or she is a worker of the em- ployer, will be informed of the results of the investigation and of any corrective action as a result of the investigation. • Any prescribed elements. 6. Employers will have additional duties with respect to protecting workers from workplace harassment as follows: • Conduct an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances. • Inform the worker who allegedly experi- enced harassment and the alleged harasser, in writing, of the results of the investigation and of any corrective action that has been taken or that will be taken. • Review the program as often as necessary, but at least annually. • Ensure workplace parties carry out their legal duties under the OHSA. 7. e amendments will make a distinc- tion between "health and safety reports" and investigation reports related to workplace harassment. In the new s. 32.0.7(2) of the act, employers will not be required to pro- vide the results of any report created from or for an investigation into a complaint of ha- rassment to the joint health and safety com- mittee, as they are required to do with other health and safety reports. 8. ere will be a new provision in the OHSA that will allow an inspector to order an employer to have an investigation con- ducted by an impartial person possessing such knowledge, experience or qualifica- tions as are specified by the inspector and to obtain a written report by that person. Pre- sumably this means that Ministry of Labour inspectors would have a clearly defined role in the resolution of complaints or issues and that the OHSA would expressly involve min- istry inspectors in complaint resolution. Amendments to other laws Bill 132 will also amend other statutes to address sexual violence and harassment on school campuses and in our communities. Some of these amendments came into force, the day that Bill 132 received Royal Assent. Compensation for Victims of Crime Act. Currently, s. 6 of the act imposes a lim- itation period of two years on applications for compensation. e section is amended to remove this limitation period for appli- cations resulting from the commission of a crime of sexual violence or of violence that occurred within a relationship of intimacy or dependency. is applies to applications commenced before the amendments come into force, subject to certain exceptions. Comes into force March 8, 2016. Limitations Act. e Limitations Act, 2002 is amended to allow no limitation pe- riod in respect of proceedings based on sex- ual assault or, in specified circumstances, on other misconduct of a sexual nature or on assault. is applies whenever the subject of the claim took place and regardless of the expiry of any previously applicable limita- tion period, subject to specified exceptions. Comes into force: March 8, 2016. Ministry of Training, Colleges and Uni- versities Act. is act is amended to impose obligations on colleges and universities re- specting sexual violence involving students. Colleges and universities must have sexual violence policies that set out the process when incidents and complaints of sexual violence are reported, and that address any other matters required under the regulations. Comes into force Jan. 1, 2017, with certain amendments on a day to be named by proclamation. Private Career Colleges Act. Amended to impose various obligations on private ca- reer colleges respecting sexual violence in- volving students. e amendments require such colleges to have sexual violence policies that set out the process when incidents and complaints of sexual violence are reported, and address any other matters required un- der the regulations. Regulations may also re- quire the colleges to implement other meas- ures addressing sexual violence involving students. Comes into force Jan. 1, 2017. Residential Tenancies Act. Amend- ments include shortening the length of no- tice a tenant must give a landlord in situa- tions where the tenant is fleeing domestic or sexual violence. Comes into force Jan. 1, 2016. New clarifications and definitions « from ONTARIO'S on page 1 ABOUT THE AUTHORS NORM KEITH Norm Keith is a partner at Fasken Martineau in Toronto practicing regulatory, employment and white collar defence and government investigations. He can be reached at (416) 868-7824 or nkeith@fasken.com. CATHY CHANDLER Cathy Chandler is an Occupational Health and Safety consultant with Fasken Martineau's Labour, Employment and Human Rights group in Toronto. She can be reached at (416) 868-7812 or cchandler@ fasken.com.

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