18 May Workplace Harassment in Ontario: Should You Speak to an Employment Lawyer?
Workplace harassment, under the Occupational Health and Safety Act (OHSA), is defined as a course of vexatious comment or conduct directed at a worker in a workplace that is known, or ought reasonably to be known, to be unwelcome.
Behaviours that may constitute workplace harassment include, but are not limited to, bullying, intimidation, offensive comments, sexual harassment, or other forms of degrading or humiliating conduct.
Employers Legal Duty to Address Workplace Harassment
The OHSA sets out specific obligations employers must follow to address and prevent workplace harassment. These obligations are intended to ensure that workplaces are safe and that complaints are appropriately managed.
Workplace Harassment Policy and Program
Employers have a legal duty to maintain a written workplace harassment policy, implement a workplace harassment prevention program, and review these policies at least annually. These requirements are mandatory and form part of an employer’s ongoing statutory obligations under OHSA.
Duty to Investigate
Where an employer becomes aware of a harassment complaint – or where harassment is alleged or reasonably suspected – the employer has a duty to ensure that an appropriate investigation is conducted in the circumstances.
A proper investigation generally includes:
- Collecting relevant evidence
- Interviewing complainants, respondents, and witnesses
- Assessing workplace risks and ongoing safety concerns
- Documenting findings and outcomes
This duty applies regardless of how the issue is raised, including where the complaint is:
- Formal or informal
- Verbal or written (including complaints raised through HR or management channels)
- Between co-workers, supervisors, or third parties
How Workplace Harassment Intersects with Other Legal Issues
Workplace harassment in Ontario may engage multiple legal frameworks depending on the nature and context of the conduct. This is important because the same set of facts may give rise to different legal rights, obligations, and remedies depending on how the conduct is characterized.
Workplace harassment may intersect with the OHSA including workplace safety obligations, prevention requirements, and employer duties to investigate and respond appropriately. It would also intersect with human rights laws under the Ontario Human Rights Code where conduct is linked to a protected ground such as sex, race, disability, religion, sexual orientation, gender, or other protected characteristics. Lastly, it could also intersect with common law employment obligations including circumstances where employment harassment contributes to a poisoned work environment or may support a constructive dismissal claim.
Legal Risk Indicators of Workplace Harassment
Certain circumstances may increase the legal significance of workplace harassment concerns and may indicate potential breaches of statutory or common law obligations.
These may include:
- Conduct that is ongoing, repeated, or escalating
- Allegations involving a supervisor or significant power imbalance
- Failure by the employer to conduct an appropriate or impartial investigation
- Retaliation or reprisal following a complaint
- Situations involving potential human rights issues
- Workplace conditions that impact employee health or safety
These factors are significant because they may engage obligations under the OHSA, potential liability under the Ontario Human Rights Code, or exposure to damages under common law principles.
Why Reaching out to KCY at LAW Early Matters
Workplace harassment matters are often complex and fact-specific, particularly because the same conduct may engage multiple legal frameworks. Early legal guidance can be important in understanding how the conduct may be characterized in law, what obligations apply, and what remedies may be available.
In addition, timing and documentation can be critical, and employers have statutory duties that must be met in responding to harassment complaints. A legal assessment can help clarify rights and obligations and ensure that the matter is addressed appropriately from the outset.
If you require guidance on workplace harassment or need assistance understanding your legal rights and obligations, please contact KCY at LAW at 905-639-0999 to book your consultation today.