Ontario Introduces New Workplace Harassment & Violence Law

Bill 168, An act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workeplace and other matters (phew, that’s a mouthful) was introduced recently by the Ontario government.  Here is a nice summary of the Bill by the law firm McCarthy Tetrault’s labour group.
The law would require employers to develop and post policies on workplace violence and harassment. “Violence” is defined as the use of ‘physical force’.  Probably the most controversial item in the Bill is the requirement for the employer to inform workers when the will be working with a person with a history of violence and the “risk of workplace violence was likely to expose the worker to physical injury.”  That will require some careful decision-making by employers.
The ‘harassment’ definition borrows from the Human Rights Code language:  “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.”   Notably, though, unlike the prohibition on harassment under the HRC, the harassment policy required under the OHSA would not be limited to specific grounds (like sex, age, creed, etc.).   In other words, employers would now be required to have a policy that addresses harassment at work generally.  Under the new law, a worker will be able to refuse work when there is a risk of workplace violence, but not when they are victims of harassment.  
Of course, an employee who is the victim of harassment at work may be able to sue her employer for breach of contract or constructive dismissal, especially if the employer was aware of the harassment and failed to stop it.  The new requirement to post a harassment policy must include a method for employees to report harassment.  So, the new OHSA obligation may work in tandem with the common law obligation on employers to maintain a harassment free workplace:  an employee who is suffering harassment will be told how to report it, and if she reports it, and the employer fails to adequately respond, the employee’s breach of contract argument would be stronger.
Workplace harassment is now governed, therefore, by a range of mechanisms, including:  (1) the Human Rights Code in Section 5(2) in relation to designated grounds; and (2)  the common law rules of contract in the form of an implied obligation on employers to treat workers decently, a duty that includes an obligation to maintain a harassment free workplace.  The new law would add a third regime by requiring employers to maintain a harassment policy relating to all harassment.