By Jennifer Mathers McHenry and Michael Winterstein
As an employer it is vital to stay on top of relevant changes to the law to ensure that your business is a) compliant with minimum requirements; b) doing all it can to avoid liability; and c) is prepared to answer any complaint or claim made. There are some big changes currently in the legislative pipeline in the form of Bill 132 which are poised to have an impact on Ontario employers in the coming years.
First, in 2015 the provincial government announced an action plan called “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment,” and with it a proposed Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment). The Ontario government seeks to better protect Ontarians from sexual violence, sexual harassment, domestic violence and other abuse with major changes in the realms of employment, education and victim rights.
For an employer, some of the key changes which will be implemented in the event that Bill 132 becomes law are two things:
- Changes to or the removal of applicable limitation periods for civil proceedings arising out of sexual assault or abuse (which may include sexual harassment). This would affect, among others, the rights of employees who have been the victims of sexual assault, harassment and/or other sexual misconduct in the course of their employment and means that a prudent employer may need to consider changes to their standard practices regarding, for example, the length of time employee files are maintained; and
- Significant amendments to the Occupational Health and Safety Act:
- The addition of a definition of “workplace sexual harassment”;
- New procedures for the reporting of incidents of workplace sexual harassment and for the sharing of information about the results (including corrective action) of any investigation;
- A heightened legal duty on the employer to protect workers from workplace harassment and to ensure that incidents are appropriately investigated with results communicated to complainants and alleged harassers; and,
- Providing for a mechanism by which an inspector under the Act can order employers to have workplace harassment investigations conducted by impartial third parties as well as require them to obtain a written report.
The prudent employer should follow the progress of the proposed legislation so that when passed they will be well equipped to manage new obligations and procedures.
About the authors:
Jennifer Mathers McHenry is a Partner in the Colson Group at Teplitsky Colson LLP. She and her team regularly advise employees and employers with respect to all aspects of the employer/employee relationship including: offers of employment, human rights obligations, changes of control, M & A, executive and other compensation issues, resignations, terminations of employment, constructive dismissals, and post-employment fiduciary and contractual obligations. Jennifer is a skilled litigator and negotiator with a business-minded and practical approach that is designed to help her clients achieve their goals, mitigate their risks, and most importantly, succeed in their work or business life.
Michael Winterstein is an associate working with the Colson Group at Teplitsky Colson. His practice is focused on employment law and commercial litigation. He works both on behalf of employees and employers.