Category: Maintaining a Harassment-Free Workplace

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Maintaining a Harassment-Free Workplace Sexual Harassment in the Workplace

Workplace Harassment Investigations And The Risk Of Defamation

Ontario employers have a duty to investigate allegations of workplace harassment. This involves preparing a report and communicating the results of the investigation to the worker and alleged harasser. 

Complying with this legal duty can create risks for employers, such as the possibility of a defamation claim by the worker or the alleged harasser. This article explores this issue with reference to the recent decision of the Court of Appeal for Ontario in Safavi-Naini v Rubin Thomlinson LLP.

Employers have a duty to investigate workplace harassment

Workers that have experienced human rights violations have a range of options to seek redress. One thing that needs to take place in the event of an incident or complaint of workplace harassment is a proper investigation. The Ontario Occupational Health and Safety Act (OHSA) places such a duty on employers.

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.”

Workplace harassment also includes workplace sexual harassment. Please see our earlier article on the situations where the duty to investigate workplace harassment arises.

The workplace harassment investigation involves several stages

Under section 32.0.7 of the OHSA, the employer needs to conduct an ” appropriate investigation in the circumstances.” The legislation also requires the worker and alleged harasser (if the latter is also a worker of the employer) to be informed in writing of the investigation results and any action that has or will be taken. 

As we looked at in a previous article, there is a Code of Practice that employers can follow in order to meet the OHSA investigation requirements. It sets out a number of useful practices that employers can use to ensure a thorough and appropriate investigation, including:

  • The investigator needs to keep the investigation confidential and not disclose identifying information unless necessary to conduct the investigation or as required by law. 
  • The investigator must prepare a written report summarizing all the relevant information, including the steps taken during the investigation, the complaint, the allegations, the alleged harasser’s response, the evidence of witnesses and the evidence gathered.

University-appointed external investigator to examine workplace harassment complaints

The recent decision of Safavi-Naini v Rubin Thomlinson LLP is an example of what can happen if the complainant disagrees with the findings of a workplace harassment investigation. 

The plaintiff was a medical resident of Northern Ontario School of Medicine (NOSM). She made complaints of workplace harassment and sexual harassment against two of the NOSM faculty members. 

NOSM appointed a law firm investigator to investigate the plaintiff’s complaints. 

The investigator concluded that the alleged harassers had not engaged in workplace harassment

The investigator prepared a report and an executive summary for NOSM. She preferred the evidence given by the alleged harassers, with the summary stating that she had concluded that she did not find that they had behaved in a manner that constituted workplace harassment or sexual harassment and that the plaintiff was not a reliable witness.

The executive summary was not made public but was filed by one of the alleged harassers with the Human Rights Tribunal of Ontario as part of his defence to a claim made by the plaintiff. The plaintiff had previously issued a press release via a publicist, so the allegations were public.

Plaintiff commenced defamation proceedings; defendants sought a dismissal

The plaintiff also started proceedings against the investigator and her firm, claiming that the executive summary was defamatory. 

The defendants sought to dismiss these proceedings under section 137.1 of the Courts of Justice Act, arguing that the proceeding arose from an expression made by the defendants that related to a matter of public interest. Under this section, the court is required to dismiss such a proceeding unless it has substantial merit, the defendant has no valid defence, and the harm likely to be suffered by the plaintiff from the expression is serious enough to outweigh the public interest in protecting the expression. 

The defendants argued that the executive summary related to a matter of public interest, namely an investigation into harassment. 

The expression in the executive summary related to a matter of public interest

The Court of Appeal agreed with the motion judge that the executive summary related to a matter of public interest. It said:

“The subject matter of the Executive Summaries concerns general matters over which the public has substantial interest. The public has significant concern over sexual harassment and workplace harassment and, generally, has an interest in investigations into these issues.”

The Court explained that not every harassment-related expression fell within the scope of public interest, but this expression did because NOSM is an educational institution. Media attention and public safety concerns were arising from the allegations. The Court noted that the plaintiff retained a publicist to generate media coverage to shame the institution.

The executive summary was protected by qualified privilege

The Court of Appeal also agreed with the motion judge’s conclusion that the defence of qualified privilege protected the summary. This was because the defendants had a duty to NOSM to report on the investigation, and NOSM had a corresponding interest or duty to receive it. The Court referred to the OHSA investigation requirements to support this conclusion:

“The [investigator and law firm] were retained to investigate allegations of workplace harassment and to prepare investigation reports for NOSM, as required under s. 32.0.7 of OHSA. Moreover, pursuant to s. 32.0.7(1)(b) of OHSA, NOSM had a legal duty to provide, in writing, the results of the investigation, and any corrective action taken, to the complainant and her alleged harassers.”

Given the motion judge’s finding that the balance favoured protecting the expression, the Court of Appeal agreed with the decision to dismiss the plaintiff’s claim against the investigator and her firm.

Contact Haynes Law Firm in Toronto for Advice on Workplace Harassment Investigations

Haynes Law Firm represents both employees and employers in workplace harassment-related matters. As the above decision shows, employers need to take great care when conducting harassment investigations. We can help your organization comply with the legal requirements. We also assist employees to respond to instances of workplace harassment and effectively enforce their rights. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.

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Human Rights in the Workplace Maintaining a Harassment-Free Workplace

Canada Ratifies New Treaty To Combat Workplace Violence And Harassment

On January 30, 2023, Canada deposited its instrument of ratification for the International Labour Organization’s Convention No. 190, the Violence and Harassment Convention 2019. This is important because it is the first international labour standard that specifically addresses violence and harassment in the workplace.

Workplace violence and harassment remain problems around the world, and Canada, unfortunately, is not immune. According to Statistics Canada, 25% of women and 17% of men experienced workplace sexual harassment in 2020, and in 2022 5.6% of employees under federal jurisdiction reported personal experiences of harassment in the preceding two years.

This article looks at the new treaty and its obligations, along with Canada’s role in the treaty’s adoption and its domestic application.

What does ratification do?

There are normally two stages in agreeing to be bound by the terms of a treaty or convention, which is an international agreement made between countries. Firstly, a country signs the treaty. Then it applies its own domestic procedures before ratification. At this second ratification stage, the country becomes legally bound by the treaty, provided that the treaty has entered into force.

Under the terms of the Violence and Harassment Convention, it comes into force for a particular country twelve months after ratification. As a result, the treaty became legally binding for Canada on January 30, 2024.

What does the convention aim to achieve?

The Violence and Harassment Convention states that it protects workers and other people in the world of work from “violence and harassment.” This is defined as:  

“a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aims at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment.”

The Convention has a broad scope of application, applying to persons in the world of work beyond just strictly employees, such as interns, volunteers and job seekers. It applies to the public and private sectors and in a wide range of settings, for example, work-related trips, communication, accommodation and commutation. 

What was Canada’s role in the convention negotiations?

Canada has been heavily involved in adopting the Violence and Harassment Convention. It chaired the committee that negotiated the Convention in 2018 and 2019 and actively participated in the negotiations that led to its adoption. 

In the following years, the Canadian Government worked with the provincial and territorial governments to deliver on its commitment to ratify the treaty. The Convention will apply across all Canadian jurisdictions. 

What do the parties need to do to comply with the convention?

The Violence and Harassment Convention contains a number of key obligations for countries that have ratified the treaty. Some of these are summarized below.

Firstly, they need to adopt, in accordance with national law, “an inclusive, integrated and gender-responsive approach” to preventing and eliminating violence and harassment in the world of work.

Secondly, several specific obligations are related to protecting workers by preventing violence and harassment. The Convention requires parties to adopt laws and regulations to define and prohibit violence and harassment in the world of work. They need to take appropriate measures to prevent violence and harassment.  They also need to adopt laws and regulations requiring employers to take steps to prevent violence and harassment, in particular and so far as is reasonably practicable, in several listed areas, including adopting and implementing a workplace policy on violence and harassment.

Thirdly, the Convention requires parties to take appropriate enforcement measures, such as ensuring the existence of remedies, such as complaint and investigation procedures and legal remedies.

Finally, parties must ensure that violence and harassment are addressed in relevant national policies and that employers and workers are provided with guidance.

What does the convention say about gender-based violence and harassment?

Gender-based violence and harassment are also key focus areas of the Convention. In addition to forming part of the overarching definition of violence and harassment, several of the treaty’s obligations require a specific action to address this problem. For example, parties need to adopt laws and regulations requiring employers to take appropriate steps to prevent gender-based violence and harassment. 

What impact will the convention have in Canada?

Canada ratified the Convention to address worker violence and harassment domestically and abroad. This is clear from the Minister of Labour’s statement upon ratification:

“Canada is joining countries around the world to protect workers and make sure they have the safe and respectful workplaces they deserve. Canadians can take pride in this milestone. We’re stepping up for workers’ rights both in Canada and around the world.”

As can be seen from the obligations outlined above, parties to the Convention have the flexibility to implement many obligations in different ways that suit their domestic systems.

Canada already has federal and provincial legislation that protects workers’ human rights and responds to violence and harassment. For example, Ontario law requires employers to investigate workplace harassment. 

The Convention states that its provisions can be applied by extending or adapting existing measures to cover violence and harassment and developing specific measures where necessary. It is still being determined at this stage whether Canadian jurisdictions intend to amend employment law in order to implement this Convention or simply rely on existing measures to satisfy the obligations.

Contact Haynes Law Firm in Toronto for Advice on Workplace Violence and Harassment

Haynes Law Firm represents employees and employers in all types of human rights claims. We help our employer clients understand their workplace safety and harassment compliance obligations. We also represent employees that have experienced harassment of any kind in the workplace or been the subject of discrimination based on a ground protected under the law. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.

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Employment Discrimination Maintaining a Harassment-Free Workplace Sexual Harassment in the Workplace

Discrimination Claims In The Human Rights Tribunal Of Ontario

We recently reported on discrimination claims for federally regulated employees, explaining that such employees could choose to bring a complaint before an administrative body (the Canadian Human Rights Commission) or through the court system. 

A similar choice faces employees that are not federally regulated. If they experience discrimination in the workplace, they may register a complaint with the Human Rights Tribunal of Ontario (HRTO) or file a claim through the court system.

This article looks at the process of filing an application with the HRTO. We also look at a recent decision of the HRTO that awarded damages to an employee that was a victim of sex discrimination and harassment that caused her to resign from her employment. 

Employers cannot discriminate on prohibited grounds

Under section 5 of the Ontario Human Rights Code (Code), every person has a right to equal treatment with respect to employment without discrimination because of a range of enumerated grounds, specifically race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability. 

Further, employees have a right to freedom from harassment in the workplace by the employer, an employer’s agent or another employee because of the same grounds. The Code also contains specific prohibitions against sexual harassment. 

Applying to the Human Rights Tribunal of Ontario

If you believe you have experienced discrimination or harassment, one option is to file an application with the HRTO.

There is a voluntary mediation stage, in which the parties may attempt to reach an agreement with the assistance of an HRTO mediator. If this is unsuccessful or one or both of the parties are not interested in trying mediation, the application will go to a hearing.

Similar to a court process, during the hearing, a party can question witnesses and introduce relevant documents as evidence. The parties make arguments about the facts and the law. The HRTO adjudicator decides whether discrimination has occurred and, if so, decides an appropriate remedy.

Employee resigned after alleged abusive and discriminatory conduct

In A.B. v C.D., the applicant employee started working for the respondent and his company in 2007. The employer began a pattern of conduct toward her that she described as abusive and discriminatory.

The applicant explained that the incidents included:

  • The employer would disparage her appearance and her weight, and comment that she “waddled” when she walked.
  • He once said in front of a customer that he would just get the applicant to “waddle over” and that when she was through, she should “go and sit down like a good dog”. 
  • She was told to put her hand up to ask to go to the bathroom.
  • The employer watched a pornographic movie with another employee and there was joking about sexual behaviours.
  • The employer called her an “idiot” on an almost daily basis and also said “no one would hire you, look at you” and “no one would want you looking like that, you can’t even walk, you waddle”. 

The applicant resigned numerous times, with the final time in 2014.

Tribunal found employer engaged in sex discrimination and harassment 

Adjudicator Reaume explained that the employer did not respond to the applicant’s specific allegations of discrimination and harassment in the workplace. He offered alternative theories about the source of the applicant’s lack of self-esteem and well-being, and said that he treated his employees fairly in a high-pressure industry.

The Adjudicator accepted the applicant’s testimony that she was targeted daily with conduct that was discriminatory, abusive and in some cases, violent. The incidents she described went well beyond good-natured teasing and sexual banter in a workplace, with the Adjudicator saying:

The vulgar and aggressive comments about her appearance, intelligence and work performance struck at the core of her dignity as a woman. She felt that she had no choice but to put up with the respondent’s behaviour if she wanted to maintain her job.

The Adjudicator found that the bullying and harassment the applicant experienced was an abuse of power, exercised in part because she is a woman. The HRTO found that the applicant was a victim of sex discrimination and that her work environment was poisoned by repeated acts of discrimination and harassment by the respondent, causing her to resign from her employment. 

Employee awarded lost wages, plus damages for injury to dignity, feelings and self-respect

Adjudicator Reaume awarded the applicant approximately $31,000 in lost income, which was the best approximation of what she would have earned if she remained with the employer for the period between when she was forced to resign and when she started a new position. 

The Adjudicator also awarded the applicant $25,000 in damages for injury to dignity, feelings and self-respect. The applicant felt degraded, humiliated, anxious, depressed and feared for her safety. The applicant’s health was also significantly affected.

Finally, the applicant requested an order that the employer implements policy, education and training programs to establish and maintain a workplace free of discrimination and harassment. The Adjudicator ordered the employer to post copies of the Code cards in the workplace, to complete an online learning course and retain an expert to develop and implement workplace human rights policies and procedures.

Contact Haynes Law Firm in Toronto for Highly Skilled Representation in Employment Discrimination Claims

Toronto employment lawyer Paulette Haynes and her team of employment professionals at Haynes Law Firm work with employees (and employee candidates) who have experienced discrimination in the workplace. The Haynes Law Firm team has worked on both sides of this issue for nearly three decades and is privy to the various tactics used by employers to avoid liability in workplace discrimination matters. To ensure you receive fair compensation or a remedial remedy appropriate for your circumstances, contact the team at Haynes Law Firm. Please fill out the online form or call us at 416.593.2731.

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Maintaining a Harassment-Free Workplace

What Should A Workplace Harassment Investigation Involve?

Employers must provide a safe working environment for employees. They are required to implement a system of internal responsibility to prevent and respond to workplace harassment and violence claims. As part of this, employers have a duty to investigate workplace harassment.

We recently reported on the definition of “workplace harassment” under the Occupational Health and Safety Act 1990 (Act) and the circumstances that trigger the employer’s duty to investigate workplace harassment. We explained that employers have a duty to investigate both incidents and complaints of workplace harassment. 

This article looks at the conduct of an investigation into workplace harassment.

What does the Act say? 

Not much! Under section 32.0.7 of the Act, employers must ensure that an investigation is conducted into incidents and complaints of workplace harassment “that is appropriate in the circumstances”. 

It also states that the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, must be informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.

What is the Code of Practice?

According to Part III.1 of the Act, a code approved by the Ontario Minister of Labour may be followed to comply with a legal requirement specified in the approval.

The Code of Practice to Address Workplace Harassment (Code of Practice) is a code approved by the Minister for use at all workplaces to which the Act applies. Compliance with the practices set out in this Code of Practice is one way in which employers can meet the legal requirements specified under various sections of the Act, including those relevant for this article, section 32.0.7 which sets out employers’ duties relating to workplace harassment.

What does the Code of Practice tell us about the conduct of workplace harassment investigations?

Part III of the Code of Practice relates to the employer’s duties concerning workplace harassment. 

If employers comply with all of the practices set out in Part III of the Code of Practice, then they are deemed to comply with section 32.0.7(1). Failure to comply with all or part of the Code of Practice may not be a breach of the Act because the Code of Practice is just one way in which employers can meet the legal requirements. 

A summary of the practices concerning workplace harassment investigations is set out below.

Appropriate investigation

According to the Code of Practice, an investigation needs to be completed within 90 calendar days unless there are extenuating circumstances warranting a longer investigation, such as more than five witnesses or a key witness being unavailable due to illness. 

The person conducting the investigation on behalf of the employer must be able to conduct an objective investigation. As such, they must not be the alleged harasser or under their direct control.

The person conducting the investigation needs to complete a range of steps, including:

  • The investigator must ensure the investigation is kept confidential and identifying information is not disclosed unless necessary to conduct the investigation or as required by law.
  • The investigator needs to interview the alleged victim and the alleged harasser or harassers. However, if the alleged harasser is not a worker of the employer, the investigator must make reasonable efforts to interview them if they are known to the employer.
  • The alleged harasser must be given the opportunity to respond to the allegations raised by the alleged victim. In some circumstances, the alleged victim should be given a reasonable opportunity to reply.
  • The investigator must separately interview any relevant witnesses employed by the employer and must make reasonable efforts to interview those who are not employed by the employer. 
  • The investigator must collect and review any relevant documents.
  • The investigator must take appropriate notes and statements during interviews.
  • The investigator must prepare a written report summarizing the steps taken during the investigation, the complaint, the allegations of the alleged victim, the response from the alleged harasser, the evidence of any witnesses and the evidence gathered. The report must set out findings of fact and come to a conclusion about whether workplace harassment was found or not. The report must be provided to the employer or supervisor to take appropriate action.

Results of the investigation

Once this report has been prepared and provided to the employer and the investigation has been concluded, according to the Code of Practice, the employer has 10 calendar days to communicate the results of the investigation, in writing, to the alleged victim and the alleged harasser, if they are a worker of the employer. The results are a summary of the findings of the investigation.

The employer has the same timeframe to communicate any corrective action (taken or to be taken), if any, in writing, to the alleged victim and the alleged harasser, if they are a worker of the employer. This must indicate what steps the employer has taken or will take to prevent a similar incident of workplace harassment if workplace harassment was found.

Review of the workplace harassment program

Finally, for an employer to be deemed to have met the requirements of the Act in respect of workplace harassment investigations, the Code of Practice requires employers to ensure its workplace harassment program is reviewed annually or when any gaps or deficiencies in its program are identified as a result of an investigation.

Contact Haynes Law Firm in Toronto for Guidance on Maintaining a Harassment-Free Workplace

Haynes Law Firm, a boutique Toronto employment law firm, assists employers in managing and maintaining safe workplace conditions for employees. Paulette Haynes and her employment law professionals work with employers to review, develop, and amend workplace policies concerning workplace violence and harassment to ensure compliance with the law. Employers that regularly update policies and practices to reflect legislative changes create a safer work environment for employees and staff and minimize the likelihood of legal claims relating to discrimination and constructive dismissal. To discuss how Haynes Law Firm can assist your organization, please contact us online or call us at 416.593.2731.

Categories
Maintaining a Harassment-Free Workplace

When Does An Employer Need To Investigate Workplace Harassment?

Employers must provide a safe working environment for employees. They must implement a system of internal responsibility to prevent and respond to workplace harassment and violence claims. As part of this, employers have a duty to investigate workplace harassment.

This article looks at the employer’s duty to investigate workplace harassment and the types of scenarios that trigger this duty.

What is workplace harassment? 

Ontario’s Occupational Health and Safety Act 1990 (Act) 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.

Workplace harassment is also defined to include “sexual harassment,” which is a similar course of vexatious comment or conduct, but where it is because of sex, sexual orientation, gender identity or gender expression. It also includes making a sexual solicitation or advance in circumstances where the person doing so is in a position to grant or deny a benefit to the worker, and the person knows or ought reasonably to know that the advance is unwelcome.

What is the duty to investigate workplace harassment?

Under section 32.0.7 of the Act, employers must ensure that an investigation is conducted into incidents and complaints of workplace harassment appropriate in the circumstances. 

Such an investigation should:

  • Be undertaken promptly – unless there are compelling reasons why a longer investigation is needed, it should be completed as soon as possible, within 90 days or less.
  • Be objective – the person conducting the investigation cannot be involved in the incident and should be independent of the alleged harasser.
  • Maintain confidentiality – information about the incident or complaint should not be disclosed unless necessary to protect workers or as needed for the investigation or as required by law.
  • Be thorough – as appropriate in the circumstances, the alleged victim, alleged harasser and any witnesses should be interviewed.

The employer must ensure that the alleged victim and the alleged harasser are informed in writing of the investigation results and of any corrective action taken or will be taken as a result of the investigation. 

When does an employer need to investigate workplace harassment?

An employer has a duty to investigate both incidents and complaints of workplace harassment. This means that the duty does not only apply where the employer has received a formal complaint from the alleged victim.

An employer needs to conduct an investigation when:

  • the employer or a supervisor becomes aware of an incident of workplace harassment by the alleged victim or another worker; or
  • a written or verbal complaint of workplace harassment is made to the employer, a supervisor or the employer’s designated person.

Some examples of scenarios that might trigger the duty to investigate workplace harassment

The Ontario Government has issued guidance containing some fictional scenarios that would trigger the employer’s duty to investigate workplace harassment. We take a look at these below.

Derogatory name-calling

A new employee at a large construction company reports that several of the other workers at work refuse to use the worker’s name instead of calling the worker derogatory names. In addition, they isolate the worker from work activities. The worker approaches the site supervisor to report workplace harassment.

The use of derogatory names may constitute a course of vexatious comment that ought reasonably to be known to be unwelcome. The employee has reported this to the supervisor, which constitutes a complaint that the employer is required to investigate. 

If the supervisor was not involved in the alleged conduct, the supervisor would be able to investigate by interviewing the alleged harassers, the alleged victim and any other witnesses.

Comments about appearance

The manager of a pharmacy location begins to make comments about how attractive the new assistant looks in particular clothing. The assistant feels uncomfortable with these comments and tells a co-worker. The co-worker follows the employer’s program and notifies head office to report the incident.

It may be possible that repeated comments about someone’s physical appearance constitute sexual harassment. Given that the employer has become aware of the incident by being notified by one of the alleged victim’s co-workers, the employer is required to investigate.

The manager who commented cannot conduct a fair and impartial investigation. Someone else, such as a manager from the head office or a person from the human resources department, will need to investigate the circumstances appropriately.

Inappropriate e-mails and dinner invites

A worker at a retail store contacts the company’s human resources department, stating that the worker feels harassed by the supervisor. The worker says that the area supervisor has sent the worker inappropriate e-mails and repeatedly invited the worker out for dinner even after the worker continually declined.

Repeated asking for dates and not taking “no” for an answer can constitute sexual harassment. The employee has lodged a complaint of workplace harassment with the employer, triggering the employer’s duty to investigate.

Similar to the pharmacy scenario above, the supervisor cannot investigate because the complaint has been made in relation to their conduct. The employer’s human resources department should complete the investigation. 

Contact Haynes Law Firm in Toronto for Guidance on Maintaining a Harassment-Free Workplace

Haynes Law Firm, a boutique Toronto employment law firm, assists employers in managing and maintaining safe workplace conditions for employees. Paulette Haynes and her employment law professionals work with employers to review, develop, and amend workplace policies concerning workplace violence and harassment to ensure compliance with the law. Employers that regularly update policies and practices to reflect legislative changes create a safer work environment for employees and staff and minimize the likelihood of legal claims relating to discrimination and constructive dismissal. To discuss how Haynes Law Firm can assist your organization, please contact us online or call us at 416.593.2731.