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Bill 132: One year later postscript

While you’re here, you may wish to attend one of our upcoming workshops:

Basic Workplace Investigation Techniques
16 Apr - 18 Apr at
in Online
If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you are not alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.
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Thank you so much for attending our webcast. We really enjoyed getting the chance to review the impact of Bill 132 and to imagine how it has, and will continue, to change workplaces.

Since our broadcast we have found one more case that illustrates the impact of this bill on workplace harassment.

In Toronto Community Housing Corp. and OPSEU (2008-0529-0004), Re, the Grievor claimed that the employer failed to maintain a discrimination and harassment-free workplace by neglecting to investigate allegations of a poisoned work environment. The Grievor was a parking enforcement officer. Months after she started this position, rumours began to spread that she had a “special” and “sexual” relationship with her supervisor, which allowed her to get preferential treatment. She claimed that these comments constituted harassment and discrimination.

The employer did a number of things to address the Grievor’s complaint, none of which constituted a formal investigation. Despite the Grievor’s request for a formal investigation and the employer’s suggestion that one would be conducted, it was later determined to be unnecessary. Since the employer agreed that this rumour had been spread by co-workers, it sought to remedy the complaint without determining who instigated the rumour through a formal investigation. Instead, the employer met with the Grievor to inform her of her options to bring forward a grievance or a complaint through its internal procedure. Interestingly, the internal complaint procedure’s policy stated that an investigation would be required 30-60 days after the issuance of a complaint. Eventually, the employer determined that the issue would be addressed with staff training.

The Arbitrator found that although the employer was acting in good faith, it failed to adequately respond to the Grievor’s complaint because it did not conduct a formal investigation into the rumour allegation. As a result, the employer contributed to the discrimination and harassment against the Grievor. The Grievor was awarded $10,500 in damages for the employer’s failure to address her complaint of a poisoned work environment. Even though Bill 132 had not yet come into force, the Arbitrator reiterated the importance of conducting an investigation as enshrined in Bill 132:

A clear message to this employer is that in future it need conduct a proper investigation into complaints received. While that involves time and resources, this proceeding also makes clear that a proper investigation with the necessary follow-up is likely to be far less costly in both human and financial terms in the long run. I note as well that amendments to the Ontario Occupational Health and Safety Act further to the recent passage of Bill 132 will take effect on September 8, 2016 and will not only require the employer to conduct a review to ensure that it is in compliance with that new legislation that specifically responds to workplace sexual harassment, but it will also impose new employer responsibilities regarding both investigating and reporting with respect to allegations of sexual harassment under a new definition of workplace harassment.[1]

This case demonstrates the importance of Bill 132’s requirement to conduct an investigation, even before it came into force. We hope employers will recognize the very same value.

Janice Rubin, Cory Boyd and William Goldbloom

About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.

About the Author: Toronto Employment Lawyer Cory Boyd has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.

About the Author: William Goldbloom develops and delivers training sessions that educate clients about their legal obligations in the workplace. William also conducts workplace assessments and investigations to help employers prevent, address and resolve issues related to discrimination, physical, verbal and psychological harassment, violence, poisoned environments and bullying.

[1] 2016 CarswellOnt 6420, 126 C.L.A.S. 296 at para 62 (ON LA)