Bill 132 – Stronger protections and employer obligations regarding Workplace Harassment
On September 8, 2016 of this year, changes to the Ontario Occupational Health and Safety Act under Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 were implemented, requiring employers to conduct comprehensive investigations into allegations of workplace harassment. The same changes came into effect for Colleges and Universities on January 1, 2017. The changes expand the definition of ‘workplace harassment’ to include ‘workplace sexual harassment’, which is defined as:
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
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.
Further to the expanded definition, the amendments also grant the Ministry of Labour Inspectors the new power to order employers to retain a third-party investigator who will complete a written investigation report at the employer’s expense. The changes add some much needed ‘teeth’ to the original Bill 168, which was perceived as underwhelming by many.
The legislative changes provide that an investigation must be “appropriate in the circumstances” and that both the complainant and the alleged harasser must be notified in writing of the outcome of the investigation. However, the legislation is silent with respect to further direction. The Ministry of Labour has published a Code of Practice that offers some guidance. It is encouraging, in the absence of detailed direction, that the courts have provided some clarity, as we see in Balraj Shoan v the Attorney General of Canada (2016 FC 1003), a decision released by the Federal Court. This decision sets down some clear boundaries and expectations of workplace investigations.
In Justice Russell Zinn’s Shoan decision a Commissioner of the Canadian Radio-Television and Telecommunications Commissions (“CRTC”), Balaraj Shoan, was the subject of a complaint of workplace harassment. It was alleged that Shoan had attempted to intimidate the CRTC Executive Director, and “destroy [her] career and reputation”, in a series of emails. A third-party investigation was arranged. The investigator found that Shoan had attempted to undermine the credibility of his co-workers, humiliated the complainant, was aggressive toward staff members, did indeed attempt to destroy the career and reputation of the complainant, and that his behaviour amounted to harassment and thus Shoan’s appointment as Commissioner was subsequently revoked.
Shoan brought an application for judicial review to have the decision re-examined on the basis that the investigation offended principles of procedural fairness and natural justice. Justice Zinn ultimately agreed, finding that the investigator had conducted the investigation with a closed mind and had failed to critically and impartially analyze the evidence, and therefore imbued it with her own biases. Justice Zinn based his decision on the “cumulative impact of many aspects of the investigative process and the Report it produced.” Justice Zinn’s decision completely discredited the investigator’s report, and found that the corrective measures which flowed from her report were “suspect and unreliable”. The decision to revoke Shoan’s appointment was set aside, and costs were awarded.
The decision is a clear reminder that the onus is on the employer to require that investigations are fair, impartial, and conducted with an open mind. If there are concerns about bias or the perception of bias, or about the subject matter, or the degree of complexity, best practices suggest that under those circumstances both the complainant and the respondent are best served by having the investigation performed by an experienced external investigator.