Sack Goldblatt Mitchell LLP
Prior to the coming into force of Bill 168 amendments
to the Occupational Health and Safety Act), there
were three main possible options for addressing
harassment in the workplace:
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
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1. The Ontario Human Rights Code
2. The collective agreement
3. Employer policy
1.
The Ontario Human Rights Code
Section 5 (2) provides for the right of employees for freedom
from harassment:
“5 (2)
Every person who is an employee has a right to
freedom from harassment in the workplace by the
employer or agent of the employer or by another
employee because of race, ancestry, place of origin,
colour, ethnic origin, citizenship, creed, age, record of
offences, marital status, family status or disability.”
The Code defines harassment as follows:
“10 (1). ‘harassment’ means engaging in a course of
vexatious comment or conduct that is known or
ought reasonably to be known to be unwelcome.”
The Code has separate provisions regarding
harassment in employment because of sex:
 “7 (2) Every person who is an employee has a
right to freedom harassment because of sex by his
or her employer or agent of the employer or by
another employee.
Some collective agreements, including some faculty
association collective agreements, specifically
prohibited personal or psychological or workplace
harassment or abuse of authority.
In addition, in recent years, many employers,
especially in the broader public sector, began to
develop civility policies or respectful work
environment policies or abuse of authority policies
that expressly or by implication prohibited bullying
or harassing behaviour in the workplace, not
limited to behaviour related to grounds set out in
the Human Rights Code.

Sometimes the employer policies provided for an
investigation procedure similar to the procedure for
internal human rights complaints.

In unionized environments, it is also usually
possible to grieve non-compliance with employer
policies.

In Ontario, for many years we have had the
Occupational Health and Safety Act, aimed at
requiring employers to provide a safe and healthy
working environment for workers. However, there
was nothing explicit in the Act pertaining to
psychological or workplace harassment or bullying.

However, workplace experts increasingly perceived
the need for a coordinated response to workplace
harassment/abuse/ bullying that was not based on
Human Rights Code grounds.

Some jurisdictions (such as Quebec) passed
legislation specifically prohibiting workplace or
psychological harassment.

Further, in a 2004 decision, a prominent Ontario
arbitrator concluded that the OHSA rqeuired
employers to exercise their managerial functions in
a manner consistent with the OHSA. In that case,
the facts were summarized by the arbitrator as
follows:
“I conclude Mr. …abused his authority and harassed
Mr. S… by publicly ordering him back to work when
others were not so ordered, by unjustifiably
complaining about his work, by restricting his use of
the phone when others were not so restricted, by
refusing to allow him to leave early for his vacation
when others were so allowed, by attempting to
discipline him when it wasn’t warranted and by
making demands on him with respect to his work
performance which were not demanded of others. “

Among other findings, the arbitrator concluded that
this violated the OHSA including the obligations
under ss. 25 and 27 on employers to provide
information, instruction and supervision to a worker
to protect the health or safety of the worker; and to
take every precaution reasonable in the
circumstances for the protection of a worker.

As a result, the arbitrator found the employer to
have violated the management rights clause of the
collective agreement.

This arbitration award was controversial, but
reflective of evolving thinking in academe
and the labour relations field about
harassment and bullying in the workplace.
A package of amendments to the Occupational
Health and Safety Act (known as Bill 168) came into
effect in June 2010. The amendments focus
primarily on prevention of harassment and violence
in the workplace through:
Risk assessment
Creation of policies and Implementation of
programs
Expanded right of work refusal
Reasonable precautions against domestic
violence
Definitions:

“workplace harassment” is defined in s.1 of Bill 168 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.”
 test from HRTO:
Generally must be a pattern of conduct (not a single incident)
Objective test: would a “reasonable person” in the shoes of the
complainant find the conduct objectionable
The definition of “workplace harassment” in Bill 168 includes:
 a single isolated incident that offends and upsets a worker
true / false?
 well-meaning conduct that is not intended to harm or demean anyone
true / false ?
 jokes or other remarks that are not specifically directed at any particular worker
true / false ?
 persistent rudeness and/or irritability of a supervisor toward workers
true / false ?
 personality conflicts between co-workers that create tension and unpleasant feelings
true / false ?

New Obligations on Employers:
1) conduct an assessment of the risk of violence
in their workplace;
 conduct re-assessments of the risk of violence in
the workplace, as required;
2) develop and maintain written policies relating
to workplace violence and harassment;
 post the policies in the workplace;
 conduct annual reviews of the policies;
(continued)

Employers are required to:
3) develop programs for implementing the
policies;
4) train employees with respect to the policies
and programs;
5) inform employees who are at risk of workplace
violence from a person with a history of violent
behaviour;
Bill 168 requires employers to develop policies with
respect to workplace harassment and workplace
violence.
The policies must be in writing.
true / false ?
The policies must be posted in the workplace.
true / false?
(2) Policies
“s. 32.0.1
(2)The policies shall be in written form and shall be posted at
a conspicuous place in the workplace.
(3)[This] does not apply if the number of employees
regularly employed at the workplace is five or fewer, unless
an inspector orders otherwise.”
Under Bill 168,
An employer must provide workers with a copy of its
harassment and violence policies
true / false?
An employer must provide training to workers with
respect to its harassment and violence policies and
programs
true / false ?
Under Bill 168,
A worker in Ontario will have the right to refuse
to work if she or he has reason to believe that
she or he is likely to be exposed to workplace
harassment
true / false?

The right to refuse unsafe work does not extend to
workplace harassment, but does extend to
workplace violence:
 “s. 43 (3) A worker may refuse to work or do
particular work where he or she has reason to
believe that
 (b.1) workplace violence is likely to endanger
himself or herself; “

Bill 168 did not prescribe a timetable for
compliance. However, most employers now have
policies and procedures in place regarding
workplace harassment.

Nothing in the legislation precludes bargaining
collective agreement language in this regard.

Some employer policies go beyond the definitions
in Bill 168 to explicitly include “bullying”.

Complaint under employer workplace
harassment policy.

Complaint under employer human rights
policy.

Grievance (depending on the issue and the
wording of the collective agreement).
Discussion re which process to invoke (if any!) and
when.
Different contexts may require different solutions. For
example:
 Annual evaluation and tenure/promotion
 Student evaluation
 Workload
 Pay
 Serious personality conflicts