In Ontario, employers have specific responsibilities regarding harassment in the workplace under the Occupational Health and Safety Act (“OHSA”). Employers have a responsibility to ensure a safe and inclusive work environment for their employees, which includes addressing issues related to workplace harassment. Additionally, preventing workplace harassment is crucial as it may lead to discrimination under the Ontario Human Rights Code (“OHRC”) and result in costly liabilities.

What are the statutory responsibilities of employers regarding workplace harassment?

As per Clause 32.0.1 (1) (b) of the OHSA, employers are obligated to create a policy concerning workplace harassment. Moreover, Clause 32.0.6 of the OHSA mandates employers to establish and maintain a documented program to execute the workplace harassment policy.

Employers have a responsibility under Clause 32.0.7 of the OHSA to safeguard their workers from workplace harassment. This includes:

1. Conducting appropriate investigations into any harassment incidents or complaints, and
2. Informing both the worker who allegedly experienced the harassment and the alleged harasser (if they are also a worker of the employer) of the investigation results in writing.
3. Corrective action taken or to be taken as a result of the investigation should also be communicated.
4. Review of the workplace harassment program, which should be implemented according to Clause 32.0.6, at least once a year to ensure it is effective.
5. Any other duties that may be prescribed.

What is the liability of a company when an employee is guilty of harassment in the workplace?

Typically, employers cannot be held responsible for instances of harassment committed by their employees. However, courts have held employers vicariously liable when the harassment occurred “within the scope of employment”.

The Supreme Court of Canada formulated a test for determining the question of an employer’s vicarious liability in Bazley v Curry. In Bazley, the Supreme Court set out a list of factors relevant to analyzing the connection between an employer’s creation or enhancement of a risk of sexual harassment by an employee.

In Ivic v Lakovic, the Ontario Court of Appeal summarized the Bazley factors, which include:

1. the opportunity that the enterprise afforded the employee to abuse his or her power;
2. the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);
3. the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;
4. the extent of power conferred on the employee in relation to the victim;
5. the vulnerability of potential victims to wrongful exercise of the employee’s power.

In Osmani v. Universal Structural Restorations Ltd., the Ontario Superior Court of Justice applied the Bazley test to determine the company’s vicarious liability for its employee’s wrongful acts. This decision is also a reminder for employers that, besides the OHSA, failing to address workplace harassment may incur liabilities under OHRC. In that case, the supervisor harassed and assaulted the plaintiff. The Court opined that the hierarchy in the company placed the plaintiff in the supervisor’s crew, and he was subject to the supervisor’s direction and control in relation to duties performed for the company. Additionally, the company failed to fulfill its obligation to conduct an appropriate investigation into the allegations of workplace harassment. This failure in the circumstances amounts to discrimination under s. 5(1) of the OHRC.

Therefore, in addition to $110,000 as the damages for battery and assault, the company was held vicariously liable for $50,000 as the damages for discrimination under the OHRC.

In summary, when the wrongful act (sexual harassment, for example) was not authorized by the employer, the imposition of vicarious liability on the employer will be justified, if the wrongful act of an employee is sufficiently related to conduct authorized by the employer.

What if the employer fails to address workplace harassment?

As noted above, employers may face vicarious liability for employees’ workplace harassment. In addition, the failure to address the issue of workplace harassment may attract constructive dismissal claims.

In Disotell v. Kraft Canada Inc., the Ontario Superior Court of Justice has made it clear that an employee who experiences prolonged harassment from colleagues can be considered constructively dismissed from their job. The employer has a clear obligation to maintain a harassment-free work environment, and failing to take necessary actions after receiving a verbal complaint from the employee’s manager is a clear violation of this obligation. It is imperative that employers take all necessary steps to prevent and address workplace harassment to ensure the safety and well-being of all employees.

What if the harassment occurred outside of the workplace?

Under OHSA, employers have an obligation to prevent workplace harassment, investigate incidents and make policies and programs related to workplace harassment. According to Clause 1 (1) of OHSA, workplace harassment means “(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment”. OHSA defines a workplace as meaning any “land, premises, location or thing at, upon, in or near which a worker works”.

Although OHSA seemingly only captures harassment “in a workplace”, it is worth noting that courts and tribunals tend to give a broad definition of workplace. In Rainy River v Olsen and Ontario (Ministry of Labour) v. 614128 Ontario Ltd. (Trisan Construction), both the Ontario Superior Court of Justice and Ontario Court of Justice state that the definition of “workplace” should be broadly viewed. Given that OHSA is remedial legislation, it is to be interpreted and applied in order to protect and enhance the rights of workers and, more specifically, to promote public safety and to prevent harm in a wide variety of circumstances.

Similarly, in Miller Group Kakabeka MDMC v A Director under the Occupational Health and Safety Act, the Ontario Labour Relations Board held that the definition of a workplace under Clause 1 (1) should be interpreted broadly in order to extend protection to the full breadth of workers as intended by OHSA. As a result, the tribunal found that the snowplough in which the worker was physically located at the time of the traffic accident and the highway on which he was operating that snowplough can be construed as his “workplace” for the purposes of OHSA.

Additionally, harassment, even outside of the workplace, may attract discipline and even constitute just cause for termination. In Simpson v Consumers’ Association of Canada et al, the Ontario Court of Appeal unequivocally ruled that an employer could rightfully, under common law, terminate a supervisor who sexually harassed employees under his supervision outside the workplace during off-duty hours. In upholding the termination, the Court held that:

“[I]t would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment.”

What are the liabilities of an employer related to harassment if their employees work remotely?

The pandemic has introduced a novel method of working for numerous individuals – from the convenience of their homes. As noted above, the definition of a “workplace” under Clause 1 (1) of OHSA is broad enough to encompass workers working remotely. Therefore, employers are generally bound by the same obligations even in a fully remote work environment.

It is important for employers in Ontario to familiarize themselves with the OHSA to understand their obligations and responsibilities regarding workplace harassment. Seeking guidance from legal professionals specializing in employment law in Ontario will provide further clarity on employer liabilities and obligations under the OHSA.

Most employers will, at some point during the lifetime of their business, have to deal with a workplace incident that results in a harassment or discrimination complaint. Although you can always hope no such incidents occur, you should be prepared to deal with them if they do. In some instances, this may require a workplace investigation.

The challenge for many employers is that it can be hard to know where to start.

Creating a solid foundation

A crucial first step for dealing with workplace harassment, which includes sexual harassment and violence, is to develop, post, regularly update, and reinforce anti-harassment policies that comply with Ontario’s Occupational Health and Safety Act (“OHSA”). The OHSA requires employers to develop written workplace violence and harassment policies, and then review and update them yearly. Every workplace harassment policy should feature the following:

• Clearly articulated definitions of discrimination and harassment that align with the Code and OHSA;
• Measures and procedures that enable employees to make complaints without fear of reprisal;
• A procedure for how the employer will address and investigate incidents and complaints of workplace harassment and discrimination.

Regarding discriminatory harassment and discrimination, Ontario’s  Human Rights Code (“Code”) recommends discrimination and harassment policies, which cover discrimination or harassment that occurs in the workplace, based on any of the prohibited grounds, such as Age, Gender, Race, Colour, Ancestry, Creed (religion), Ethnic Origin, Citizenship, Sex  (including pregnancy, gender identity), Sexual Orientation, marital Status, Disability, Receipt of Public Assistance or Family Status. Developing workplace harassment policies, including Code-based discrimination or harassment, ensures you satisfy your statutory obligations pursuant to the OHSA and Code.

If you do not already have workplace harassment policies in place, you have contravened the OHSA, and should immediately rectify the breach. Contacting an experienced employment lawyer can begin this process.

Before commencing a costly investigation, consider mediation

Mediation can be a cost effective and efficient method to resolve a dispute in instances where the allegations are not serious and do not trigger an obligation to investigate. For example, in a situation where there is a workplace conflict, but harassment that meets the OHSA definition has not been alleged. There are numerous benefits to mediation, such as:

• Early mediation can prevent workplace conflicts from escalating into more serious instances of workplace harassment or discrimination;
• Mediation is less costly and more time efficient than a workplace investigation;
• Mediation is less disruptive to the workplace; and
• Mediation can lead to reconciliation between the parties and a mutually agreeable outcome.

The Investigator

If mediation is not an option, your first step is to consider what kind of investigation is appropriate for the situation. Investigations are costly if you need to hire an external investigator, and not every situation warrants it.  However, if you err and conduct an internal investigation with inexperienced staff, or staff that may have or be perceived to have a bias, there could also be costly consequences. If the situation involves senior management, or there are complex allegations, you should find an experienced external workplace investigator. Where you might also need a legal opinion along with the investigation and findings, you should seek out a lawyer with investigation experience.

Whether you choose to an internal or external investigator, bear in mind that the ideal investigator is familiar with OHSA, as well as the Code where discrimination is also alleged, and should also be familiar with workplace law and the employer’s policies and practices.

Dealing with the results of an investigation

The investigator will provide you with a report on the findings and recommendations of the investigation. In some instances, you may ask the investigator for a legal opinion to accompany the report. If you do, you must hire a lawyer with workplace investigation experience.

Depending on the results of the investigation, you may be required to take action. For example, if the investigator concludes that harassment or discrimination did, in fact, occur, you could be required to take disciplinary measures against the respondent, up to and including termination for cause in serious situations.

Employers are obligated to create a workplace free from harassment or any form of discrimination. Therefore, employers should take workplace harassment complaints seriously and address them expeditiously. However, not every harassment complaint requires an investigation. It is crucial to understand what harassment is and consult with experienced legal counsel quickly to determine a sufficient and cost-effective approach.

Defining workplace harassment

Not all objectionable workplace conduct is harassment. Rather, harassment is defined as conduct that a reasonable person in the complainant’s position would consider unwelcome, vexatious, and abusive.

If a co-worker or superior’s improper conduct, behaviour, or actions could be deemed unwelcome to a reasonable bystander in the complainant’s circumstances, it will constitute workplace harassment. In each case, however, whether an employee was subjected to harassment would be mostly fact-driven.

Section 1(1) of the Occupational Health and Safety At (“OHSA”), reproduced below, defines both workplace harassment and sexual harassment:

“workplace harassment” means,

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b)  workplace sexual harassment; (“harcèlement au travail”)

“workplace sexual harassment” means,

(a)  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

(b)  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; (“harcèlement sexuel au travail”)

When to investigate

Employers in Ontario have statutory obligations to investigate discrimination and harassment allegations under the OHSA and the Human Rights Code (“Code”).

In Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, the Human Rights Tribunal of Ontario (“HRTO”) recognized the procedural obligation on employers to investigate a harassment complaint based on discriminatory practices under the Code. This means employers will be legally liable if genuine complaints of discrimination or harassment allegations are not addressed in the workplace. Additionally, even in the absence of a complaint by an employee, employers with actual or constructive knowledge are obligated to address workplace misconduct. However, this is not to say that an employer must, in all circumstances, trigger a full-blown investigation. Employers can dismiss a harassment claim where their preliminary findings point out that the allegations are unfounded or the complainant’s requests for accommodation are unwarranted. In all situations it is likely wise to consult legal counsel before doing so.

Reducing liability through proper investigation

An effective and appropriate workplace investigation into claims of harassment can reduce an employer’s liability. For example, in Robichaud v. Canada, [1987] 2 SCR 84, the Supreme Court of Canada stated:

An employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps.

By contrast, a biased and inadequate investigation in a case of harassment would result in a damages award. Such was the case in Doyle v. Zochem Inc, 2017 ONCA 130. The Ontario Court of Appeal found that the employer’s investigation into a case of sexual harassment was shoddy and unfair. This warranted moral and human rights damages in favour of the harassed employee.

Hiring an ill-equipped investigator or using a potentially biased employer’s representative to undertake harassment investigations into sensitive complaints involving senior management or complex  situations could have two effects:

• It will affect workplace morale negatively.
• It will enhance a damages award in favour of the claimant.

Accordingly, employers should at all times take time to consider: does the complaint raise discrimination or harassment allegations that make an investigation necessary? What kind of investigation is appropriate in the circumstances? Is it necessary to retain an external investigator? Employers will want to ensure that they have someone able to assess misconduct allegations to determine if, based on the evidentiary record, harassment occurred. If the investigator is a lawyer, they will also be able to provide the employer with legal advice.

Harassment may take a variety of forms. Calling attention to a person’s speech patterns, modes of dress, or physical appearance could all be considered harassment. While many thought that remote work would result in fewer incidents, working from home seems to have increased workplace harassment. According to a survey result published by Rights of Women, a British charity, “Covid-19 has seen women experience an upsurge in online sexual harassment whilst working from home, as harassers take advantage of online work platforms and social media during the pandemic.”

Employer obligations regarding workplace harassment

Although the survey is only about sexual harassment encountered by women, employers should be aware that harassment is not always necessarily sexual in nature, and it could happen to anyone while working from home. Ontario employers are obliged to provide healthy and safe working environments for their employees, and deal with workplace harassment under the Ontario Occupational Health and Safety Act (“OHSA”) – or the Canada Labour Code if federally regulated. The OHSA defines workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This definition includes, but is not limited to, sexual harassment. As the OHSA defines a workplace as any land, premises, location, or thing at, upon, in or near which a worker works, it actually may include employees’ home or any place from which they are working remotely.

As such, remote working may render the definition of workplace less important, while employers bear the same obligations to deal with harassment via Zoom, Teams, or even emails or phone calls. However, the line between workplace harassment and non-workplace harassment may be blurred in a remote working scenario. This may prove challenging to employers as their existing policies and practices could be insufficient in dealing with these new forms of harassment.

5 ways employers can protect employees from workplace harassment in the age of remote work

Since employers have a duty to provide a healthy and safe working environment, there are a few things employers should do to protect employees and fulfil their statutory obligations.

1. Update workplace harassment policies: Employers should consider updating existing workplace harassment policies to clearly include online harassment behaviours, laying out typical examples, and establishing responsive protocols to process harassment complaints.
2. Communicate with employees: It is important to educate employees about workplace harassment including online harassment in a remote working scenario, informing them of their rights, what is acceptable, and what is not.
3. Establish clear policies and procedures: Employers should outline clear technical solutions regarding online harassment. For example, the host of a Zoom meeting may kick a harasser out; the IT team may monitor, filter, or block emails or messages that contain unwelcome contents; employees may have separate virtual working phone numbers to avoid giving out their personal phone numbers. Consider having employees review a guide that explains the policy and sign the document.
4. Establish work-life boundaries: Draw a clear line between working hours and non-working hours and stick to it. This may help to separate workplace harassment and non-workplace harassment, especially that between colleagues, in a remote working scenario. Ontario’s recent
5. Set a good example: Employers should create an inclusive workplace culture that is accepting of diversity. It is important that employers establish supportive environments recognizing that, while there may be differences, it is the commitment to shared goals and teamwork that are critical to their interactions. From team leads through to upper management, organizational leaders should be trained in ways to correct and redirect actions that can cause significant discomfort and embarrassment.

Workplace harassment should not be ignored. Avoidance or delayed action could result in more serious and costly issues within any organization. When we are brought in for investigations costs begin in the thousands and could easily grow beyond $100,000.00. Practicing prevention and creating a positive workplace culture goes a long way to avoiding such costs.

If you need guidance from an experienced employment lawyer, call Hum Law today at (416)214-2329 or Complete our Free Assessment Form Here.