This document provides an overview of harassment in the workplace and compliance with Bill 132. It discusses the risks of harassment, requirements under Bill 132 to update policies and train employees, how to respond to allegations, conduct investigations, take remedial action, create harassment policies, and train workers. Key points covered include investigating complaints in a timely, thorough and unbiased manner, reaching conclusions based on the balance of probabilities, communicating investigation results to complainants and respondents, and ensuring corrective actions are taken if harassment is found to have occurred.

1. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Hosted by:
www.rudnerlaw.ca
Harassment in the
Workplace
Stuart Rudner
stuart@rudnerlaw.ca
416.864.8501
Presented by:
Alex Zlatin, MBA, B.Sc.
CEO - Maxim Software Systems
(MaxiDent)
Executive Director - Dental Office
Managers Association of Canada
Author of “Responsible Dental
Ownership - Balancing Ethics and
Business Through Purpose”

2. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Disclaimer
The user is authorized to use this presentation for the user’s own needs only, and is not
authorized to make copies thereof for sale or for use by others.
This presentation is not provided for the purpose of providing legal advice.
Every situation is unique and involves specific legal issues. If you would like legal advice
with respect to the topics discussed in this presentation, or any Employment Law matter,
we would be pleased to assist you.
2

3. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Overview
1.Risks
2.Bill 132
3.Responding to Allegations
4.Conducting Investigations
5.Taking Remedial Action
6.Creating a Written Policy
7.Training Workers
3

4. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Risks
● Bad PR
● Legal liability
○ Wrongful dismissal
○ Constructive Dismissal
○ Punitive damages / Moral damages / Infliction of
emotional distress
● Fines
● Not being an employer of choice
4

5. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Case Law
Bassanese v German Canadian News Company Limited et al.
● Employee worked for 19 years
● 73 years old
● Alleged that she was harassed over prolonged period
● Complained to president on several occasions
● Harassment escalated to physical violence
○ complained to managing director and filed police report
● Terminated same day without notice
5

6. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Case Law
Bassanese v German Canadian News Company Limited et al.
Awarded:
● 19 months of pay in lieu of notice - $129,433
● vicarious liability for assault - $15,000
● aggravated damages - $50,000
6

7. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Case Law
Increasing Damage Awards for Sexual Harassment
AB v Joe Singer Shoes Limited - employee awarded $200,000
GM v X Tattoo Parlour - employee awarded $75,000
7

8. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Purpose of the Human Rights
Act
The purpose of this Act is to extend the laws in Canada to give effect, within the
purview of matters coming within the legislative authority of Parliament, to the
principle that all individuals should have an opportunity equal with other
individuals to make for themselves the lives that they are able and wish to have
and to have their needs accommodated, consistent with their duties and
obligations as members of society, without being hindered in or prevented from
doing so by discriminatory practices based on race, national or ethnic origin,
colour, religion, age, sex, sexual orientation, gender identity or expression, marital
status, family status, genetic characteristics, disability or conviction for an offence
for which a pardon has been granted or in respect of which a record suspension
has been ordered.

9. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Harassment in the Human Rights Act
Harassment
● 14 (1) It is a discriminatory practice,
○ (a) in the provision of goods, services, facilities or accommodation
customarily available to the general public,
○ (b) in the provision of commercial premises or residential
accommodation, or
○ (c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination.
● Sexual harassment
(2) Without limiting the generality of subsection (1), sexual harassment
shall, for the purposes of that subsection, be deemed to be harassment
on a prohibited ground of discrimination.
1980-81-82-83, c. 143, s. 7

10. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Bill 132
● Expanding the Definition of “Workplace Harassment”
● Includes “Workplace Sexual Harassment”
10

11. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Bill 132
What do you need to do?
● Update policies
● Update procedures
● Train employees, supervisors & managers
● Investigate all complaints and incidents
11

12. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
What if You Don’t?
● Power to order an independent investigation
● Fines:
○ Fine for individuals increased from $25,000.00 to $100,000
○ Fine for corporations increased from $500,000.00 to $1,500,000.00
(Ontario)
12

13. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Complying with Bill 132
● Policies and processes should be written, communicated, enforced and updated
as needed
● Retain records of harassment and discrimination complaints, investigation
processes and reports
● Act in a timely manner
● Confidentiality should be maintained
● Train your employees
● Investigate complaints properly before taking disciplinary action
● Communicate findings of the investigation with the parties, and outline what
steps will be taken to resolve the matter
● Ensure a safe work environment free from harassment, discrimination, and
reprisals
13

14. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Responding to Allegations
● Do not ignore
● Act expeditiously
● Call your employment lawyer
● Check policy
○Requirements for investigation / timing / people involved
■Review policy now to ensure not overly restrictive
● Consider other obligations (i.e. union)
● Decide who will conduct investigation
14

15. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Responding to Allegations
● Notify complainant and respondent
● Be mindful of complainant and respondent
○Ensure safe work environment
○Consider referral to EAP
○Interim steps
● Do not promise repercussion/lack thereof
● Do not promise confidentiality but demand it
15

16. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Hallmarks of a Good Investigation
● Unbiased
● Thorough
● Timely
● Well documented
● Defensible conclusions
● Recommendations & action items?
16

17. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Internal vs External Investigator
● Seriousness of allegations
● Sensitivity of issues
● Appearance of bias
● Expertise
● Availability
● Cost
17

18. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Conducting Investigations
Interviewing the Complainant/Respondent and Witnesses
● Interview complainant
● Collect
○ All relevant details
○ Evidence with respect to incident(s) (e.g. emails, text messages,
photos, etc.) and
○ Names and contact information of witnesses
18

19. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Conducting Investigations
Reaching a Conclusion
● Once all evidence is collected, investigator must reach conclusion
○ Was there harassment or not?
● Don’t cop out – reach a conclusion
○ balance of probabilities - not “beyond a reasonable doubt”
● Assess credibility
○ Compare to evidence
○ What has “air of reality”?
19

20. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
The Importance of a Fair
Investigation
● Investigate first
● Ensure fairness, objectivity, thoroughness
● Give opportunity to respond
● Often, employee response is critical factor in determining
appropriate discipline
20

21. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Case Law - Bad
Investigation
Vernon v British Columbia
● 30 year employee accused of bullying/harassment
● Known as “The Little General”
● Used offensive language, racial and other inappropriate
comments
● Court concluded that the “investigation was flawed from
beginning to end. It was neither objective nor fair”
21

22. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Case Law
Vernon v British Columbia
● Awarded
○ 18 months’ notice
○ $35k in “The Damages Formerly Known as Wallace”
○ $50k punitive damages
22

23. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Case Law
Burlington (City) v Canadian Union of Public Employees, Local
2723
● Employee brought harassment complaint against two co-workers - both fired
● Another employee, close friend of the co-workers, brought harassment
complaint against first employee → fired
● Grievor reinstated - claim not made out
● Employers have responsibility to “guard against complaints that are made for
improper ulterior motives”
● Employer almost blindly overlooked circumstances of complaint and failed to
acknowledge possibility that complainant may have been “embellishing” his
story as “pay back” against the grievor
23

24. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Reporting Obligations
Communicating the Results
● Complainant and respondent must be informed, in writing, of
results of investigation and any corrective action to be taken
○ Does not necessarily mean providing them with full report
● How much detail an employer is required to provide to a
complainant/respondent is not expressly set out
24

25. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Remedial Action
Corrective Action
● Employer must determine what, if any, actions must be taken based on
investigator’s report
● Options include:
○ (Re)training
○ Mediation
○ Verbal warning
○ Written warning
○ Suspension (with pay)
○ Dismissal (with or without cause)
25

26. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Creating a Written Policy
Essential Elements of Policy/Program
● The Company’s commitment to maintaining a harassment free
workplace
● Clear statement regarding scope of the policy
● Encourage reporting
● Procedures
● Consequences
26

27. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Creating a Written Policy
Essential Elements of Policy/Program
● Definition of Workplace Harassment/ Definition of Workplace
Sexual Harassment along with examples
● What is NOT harassment
● Process for Reporting Harassment
● Sanctions for false allegations
● Prohibition on Reprisal for Good Faith Complaints /
Retaliation Against Anyone Participating in Investigation
27

28. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Implementing Policies
●Publicize policies
●Tell and train all employees: staff, managers, supervisors,
executives
●Monitor behaviour
●Discipline offenders
●Update regularly
●Incorporate into employment contracts
28

29. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Training Workers
● Training must be appropriate to duties/responsibilities of
employees
○ e.g. More training for managers and supervisors on
responding and recognizing harassment
○ Investigation training mandatory for anyone who may
conduct internal investigations
○ New employees should be trained ASAP after joining
29

30. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Alex’s Highlight of the Night
30

31. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
CE Code: AZSR21SFR20
Questions?
31

32. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Contact Us
416.864.8500
905.209.6999
info@rudnerlaw.ca
100 Allstate Parkway Suite 600
Markham, ON L3R 6H3
32
Presented By:
Stuart Rudner
416.864.8501
stuart@rudnerlaw.ca
Sign up for our Newsletter!
CE Code: AZSR21SFR20