Sexual Harassment at Work: The Legal Framework After #MeToo

The Law Before the Movement

The legal prohibition against sexual harassment in the workplace did not begin with #MeToo. In Canada, the foundational case is Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, in which the Supreme Court of Canada defined sexual harassment as "unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment." The Court recognized sexual harassment as a form of sex discrimination prohibited under human rights legislation.

The decision was groundbreaking for its time. Chief Justice Dickson, writing for the majority, rejected the argument that sexual harassment was merely personal conduct unrelated to the employment relationship. He recognized that the workplace is characterized by power imbalances that enable and amplify harassment, and that the failure to prohibit harassment at work is itself a form of discrimination because it imposes a condition on employment — the tolerance of unwanted sexual conduct — that disproportionately affects women.

In the decades that followed Janzen, the legal framework for addressing workplace sexual harassment developed along three parallel tracks: human rights legislation, employment standards legislation, and the common law.

The Human Rights Track

Every Canadian jurisdiction prohibits discrimination in employment on the basis of sex, and sexual harassment is recognized as a form of sex discrimination. In Ontario, the Human Rights Code prohibits harassment in employment on the basis of sex (section 7(2)) and specifically prohibits sexual solicitation by a person in a position to confer or deny a benefit (section 7(3)).

The Human Rights Tribunal of Ontario (HRTO) has jurisdiction to hear complaints of sexual harassment in employment. The process is complaint-driven: an employee who believes they have been sexually harassed files an application with the HRTO, naming the employer and, in some cases, the individual harasser as respondents.

The Tribunal process is formal, quasi-judicial, and often lengthy. As of 2024, the HRTO's processing times have been the subject of persistent criticism. Applications filed today may not receive a hearing for a year or more. During that period, the complainant lives with the complaint unresolved, often while still employed by the same employer or while searching for new employment in an industry where the complaint may be known.

Remedies. The HRTO can award monetary compensation for injury to dignity, feelings, and self-respect (general damages), lost wages, and, in appropriate cases, can order the employer to implement anti-harassment policies, provide training, or reinstate the complainant. General damages in sexual harassment cases have increased significantly over the past decade. Awards of $25,000 to $50,000 are no longer unusual, and awards exceeding $100,000 have been made in cases involving sustained patterns of harassment, particularly egregious conduct, or employer complicity.

In Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, the Tribunal awarded $100,000 in general damages — a figure that was at the time considered exceptional. More recent decisions have continued to push the range upward, reflecting both the Tribunal's evolving assessment of the harm caused by sexual harassment and the influence of the broader cultural reckoning.

The employer's vicarious liability. Under the Human Rights Code, employers are liable for the discriminatory conduct of their employees unless the employer can demonstrate that it took reasonable steps to prevent and respond to the harassment. This vicarious liability regime creates a powerful incentive for employers to maintain robust anti-harassment policies and to investigate complaints promptly and thoroughly. The failure to investigate — or the conduct of an inadequate investigation — can itself give rise to liability.

The Employment Standards Track

Ontario's Occupational Health and Safety Act (OHSA) has addressed workplace harassment since 2010, when Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), came into force. Bill 168 required employers to develop and maintain a workplace harassment policy and program.

In 2016, Bill 132, the Sexual Violence and Harassment Action Plan Act, significantly strengthened the OHSA's harassment provisions. Bill 132 expanded the definition of workplace harassment to explicitly include workplace sexual harassment, defined as engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity, or gender expression, or making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant, or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Bill 132 also imposed significant new obligations on employers:

Investigation obligation. Employers must ensure that an investigation is conducted into every incident or complaint of workplace harassment that is "appropriate in the circumstances." This is a mandatory obligation — the employer cannot decline to investigate, cannot dismiss a complaint without investigation, and cannot substitute informal resolution for a formal investigation unless both parties consent.

Investigator qualifications. While Bill 132 did not prescribe specific qualifications for workplace harassment investigators, it required that the investigation be conducted by a person who is "impartial" and who is not "directly involved in the events being investigated." This effectively prohibits employers from assigning the investigation to the respondent's supervisor, a close colleague, or anyone else with a conflict of interest.

Worker notification. After the investigation is completed, the employer must inform the complainant and the respondent, in writing, of the results of the investigation and of any corrective action that has been or will be taken as a result of the investigation. This was a significant change — previously, employers could (and frequently did) refuse to disclose investigation results, citing confidentiality.

Ministry of Labour powers. Bill 132 gave the Ministry of Labour the power to order an independent investigation at the employer's expense if the Ministry determined that the employer's investigation was inadequate. This supervisory power provides a backstop against employers that conduct cursory or biased investigations.

The Limits of the OHSA Framework

Despite the Bill 132 reforms, the OHSA framework has significant limitations as a vehicle for addressing sexual harassment.

No individual remedies. The OHSA is a regulatory statute administered by the Ministry of Labour. It does not provide individual monetary remedies to complainants. An employee whose complaint of sexual harassment is substantiated through an OHSA investigation receives written notice of the results and any corrective action — but they do not receive compensation for the harm they suffered. For monetary remedies, the employee must go to the Human Rights Tribunal or the courts.

Investigation quality varies dramatically. The requirement that investigations be "appropriate in the circumstances" provides employers with significant discretion in how they conduct investigations. Some employers retain experienced, independent workplace investigators and produce thorough, credible reports. Others assign investigations to in-house HR staff with minimal training, who produce cursory reports that do not withstand scrutiny.

The employer controls the process. The employer selects the investigator, defines the scope of the investigation, determines the timeline, and decides what corrective action to take. The complainant has no input into any of these decisions. This structural feature of the OHSA framework — the employer as both party to the dispute and controller of the dispute resolution process — is its most fundamental limitation.

The Common Law Track

The common law provides a third avenue for employees who have experienced sexual harassment. The two most common claims are constructive dismissal and the tort of intentional infliction of mental suffering (now more commonly framed as the tort of harassment or the tort of sexual harassment).

Constructive Dismissal

An employee who is subjected to sexual harassment may claim constructive dismissal on the basis that the harassment — or the employer's failure to address the harassment — constituted a fundamental breach of the employment contract. The employment contract includes an implied term that the employer will maintain a safe and respectful workplace. A pattern of sexual harassment, or a single incident of sufficient severity, can breach that implied term.

The constructive dismissal framework was significantly clarified by the Supreme Court of Canada in Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10, which confirmed the two-branch test for constructive dismissal. Under the first branch, the employee must show that the employer breached an express or implied term of the contract in a manner that was sufficiently serious to constitute a repudiation. Under the second branch, the employee must show that the employer's conduct, viewed objectively, demonstrated an intention to no longer be bound by the contract.

Sexual harassment can satisfy either branch. A pattern of harassment breaches the implied term of a respectful workplace (first branch). An employer that knows about harassment and fails to address it demonstrates, by its inaction, that it does not intend to be bound by its obligation to provide a safe workplace (second branch).

Damages. An employee who successfully establishes constructive dismissal is entitled to damages for wrongful dismissal — typically measured by the reasonable notice period, determined by the Bardal factors: age, length of service, character of employment, and availability of comparable employment. In addition, if the employer's conduct was sufficiently egregious, the court may award Honda damages (moral damages for the manner of dismissal) and, in exceptional cases, punitive damages.

In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, the Ontario Court of Appeal upheld a jury award that included significant damages for constructive dismissal arising from a pattern of workplace harassment by a supervisor. The Court emphasized that employers have a duty to protect employees from harassment and that the failure to do so can give rise to liability for constructive dismissal.

The Tort of Harassment

Canadian courts have recognized that a persistent pattern of harassment can give rise to tortious liability independent of the employment contract. In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Ontario Court of Appeal declined to recognize a freestanding tort of harassment in that case but left open the possibility that such a tort might develop in appropriate circumstances. Other courts have been more willing to find liability on the basis of the established tort of intentional infliction of mental suffering, where the defendant's conduct was flagrant and outrageous, calculated to produce harm, and did produce recognizable psychiatric illness.

For sexual harassment specifically, the question of whether a freestanding tort exists in Canada remains open. Plaintiffs typically frame their claims under the established torts of intentional infliction of mental suffering, assault, battery, or the developing tort of invasion of privacy, depending on the nature of the harassing conduct.

The Investigation Problem

Across all three legal tracks, workplace investigations are the critical mechanism through which harassment complaints are resolved. And across all three tracks, the quality and independence of investigations remain deeply problematic.

The fundamental structural issue is that the employer controls the investigation. The employer selects and pays the investigator. The employer defines the terms of reference — the scope of what the investigator will examine. The employer receives the report and decides what action to take. The complainant is a participant in the process, not a party who controls it.

This structural arrangement creates predictable problems:

Scope limitations. Employers sometimes define the terms of reference narrowly, excluding conduct that falls outside a specific time period or specific type of allegation. An investigator retained to investigate "the incident of March 15" may be precluded from examining a pattern of conduct that stretches back months or years.

Credibility assessments. Workplace investigators must assess the credibility of the complainant, the respondent, and witnesses. These assessments are inherently subjective and can be influenced by conscious or unconscious bias. An investigator who is a repeat hire for the employer — and many workplace investigators derive a substantial portion of their income from a small number of corporate clients — faces structural pressures that may affect their impartiality, even if they are not consciously aware of those pressures.

Outcome incentives. Employers generally prefer investigation outcomes that minimize legal exposure. An investigation that finds harassment occurred triggers obligations — corrective action, potential discipline of the harasser, disclosure to both parties, possible regulatory scrutiny. An investigation that finds the complaint unsubstantiated has fewer immediate consequences for the employer. This does not mean that investigations are routinely manipulated — many are conducted with genuine professionalism and integrity. But the structural incentive runs in one direction.

Trauma of the process. For the complainant, the investigation itself is often a traumatic experience. They must recount the details of the harassment, often multiple times. They must do so to a stranger who is being paid by the entity that may bear responsibility for the harassment. They face cross-examination-style questioning about their recollection, their conduct, and their motivations. And they must wait — often for weeks or months — for the results, during which time they may continue to work in proximity to the person they have accused.

What #MeToo Changed — and What It Did Not

The #MeToo movement, which gained global momentum in October 2017, fundamentally altered the cultural conversation about sexual harassment. It made visible what many people had experienced privately — that sexual harassment in the workplace was pervasive, that victims were routinely disbelieved or ignored, and that powerful individuals could engage in predatory conduct with impunity because the systems designed to prevent harassment were structurally incapable of doing so.

What changed culturally. The stigma associated with reporting sexual harassment decreased. The expectation of organizational accountability increased. Employers faced public pressure — from employees, customers, shareholders, and the media — to take complaints seriously and to impose meaningful consequences on harassers. Serial harassers who had operated with impunity for years were, in some cases, held accountable.

What changed legally. In Ontario, the most significant legal reform — Bill 132 — predated #MeToo by a year. The legal framework for addressing workplace sexual harassment was already being strengthened before the movement gained momentum. Post-#MeToo, the most significant legal developments have been at the level of enforcement and interpretation rather than legislation. Tribunal awards have increased. Courts have become more willing to recognize the psychological harm of harassment. Employers have invested more heavily in anti-harassment training and investigation processes.

What did not change. The structural features of the legal framework that disadvantage complainants remain largely intact. The employer still controls the investigation. The complaint processes at the HRTO and the Ministry of Labour remain slow. The burden of pursuing a complaint — emotional, financial, and professional — still falls almost entirely on the complainant. And the remedies available, while improving, still do not reflect the full cost of what sexual harassment inflicts on the person who experiences it.

What Employees Should Know

If you are experiencing sexual harassment at work, here is what the law provides and what it does not:

You have the right to complain. Under both the Human Rights Code and the OHSA, you have the right to make a complaint of sexual harassment. Your employer is prohibited from retaliating against you for making a complaint (Human Rights Code, s. 8; OHSA, s. 50).

Your employer must investigate. Under OHSA, your employer is legally required to investigate your complaint. The investigation must be appropriate in the circumstances, conducted by an impartial person, and you must be informed of the results in writing.

You have multiple legal avenues. You can file a complaint with the Ministry of Labour (OHSA enforcement), file an application with the Human Rights Tribunal, or pursue a common law claim through the courts. These options are not mutually exclusive, although there are strategic considerations about which to pursue and when.

Document everything. Keep a contemporaneous record of harassing conduct — dates, times, locations, what was said or done, who was present, and how it affected you. Save any written communications. This documentation may be critical if you later need to establish a pattern of conduct.

Get independent legal advice early. Before you make a complaint, before you participate in an investigation, and before you sign anything, consult an employment lawyer who represents employees. The employer has lawyers. You should too.

The legal framework is imperfect. The processes are slow. The outcomes are uncertain. But the rights are real, and they exist because people before you — many of them at enormous personal cost — fought to establish them. Use them.