Workplace Harassment Under Bill 132: What Employers Actually Owe

Bill 132 Changed the Rules. Most Employers Didn't Notice.

In 2016, Ontario enacted Bill 132, the Sexual Violence and Harassment Action Plan Act, which amended the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA), to significantly expand employer obligations around workplace harassment. The legislation was a direct response to growing evidence that existing protections were inadequate — particularly for sexual harassment, which was often ignored, minimized, or buried by employers.

Bill 132 didn't merely add another layer of compliance. It fundamentally restructured the legal framework for workplace harassment in Ontario. And yet, years after its enactment, many employers still operate under the old rules — to their significant legal and financial peril.

The Expanded Definition of Workplace Harassment

Before Bill 132, OHSA defined "workplace harassment" relatively narrowly. The amendment expanded the definition in section 1(1) to include:

- **Workplace harassment:** 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.

- **Workplace sexual harassment** (a new, standalone category):


    1. 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, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome.

    2. 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.

The second limb of the sexual harassment definition is particularly significant. It captures the quid pro quo dynamic — the supervisor who conditions a promotion on sexual favours, or the manager who retaliates against an employee who rejects an advance. This provision doesn't require a "course of conduct." A single incident suffices.

Employer Obligations: The Investigation Mandate

Bill 132 imposed concrete, enforceable obligations on employers. Under section 32.0.7 of OHSA, employers must:

1. **Develop and maintain a workplace harassment policy.** The policy must be in writing, reviewed annually, and posted in a conspicuous location in the workplace.

2. **Develop a program to implement the policy.** The program must include:

    Measures and procedures for workers to report incidents of workplace harassment.

    3. A description of how the employer will investigate and deal with incidents and complaints.

    4. A description of how information obtained through an investigation will be kept confidential (except as necessary to investigate, take corrective action, or as required by law).

    5. A description of how the complainant and the alleged harasser will be informed of the results of the investigation and any corrective action taken.

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6. **Ensure investigations are appropriate in the circumstances.** This is the critical obligation. Bill 132 requires the employer to ensure that an investigation is "appropriate in the circumstances" — language that gives the Ministry of Labour significant enforcement discretion.

7. **Inform the parties of results.** Both the complainant and the respondent must be informed in writing of the results of the investigation and any corrective action taken or that will be taken.

The investigation obligation is mandatory and triggered by a complaint. The employer cannot simply decide not to investigate. Even if the employer believes the complaint is frivolous, they must investigate or face potential penalties.

What "Appropriate in the Circumstances" Actually Means

The phrase "appropriate in the circumstances" is deliberately flexible — and courts and the Ontario Labour Relations Board (OLRB) have given it teeth. An "appropriate" investigation must generally:

- Be conducted promptly after a complaint is received.

- Be conducted by an impartial investigator — someone without a conflict of interest or pre-existing relationship with the parties that would compromise objectivity.

- Include interviews with the complainant, the respondent, and relevant witnesses.

- Consider and preserve relevant documentary evidence.

- Apply a fair process — both parties must have an opportunity to respond to the allegations and to the evidence against them.

- Result in written findings and recommendations.

In Casemore v. Workplace Safety and Insurance Board, 2015 CanLII 75672 (ON LRB), the OLRB examined the adequacy of a workplace harassment investigation under OHSA. The Board found that a cursory or superficial investigation — one that fails to interview key witnesses, ignores relevant evidence, or reaches conclusions without adequate factual support — does not meet the statutory standard.

The Ministry of Labour can issue compliance orders requiring employers to re-do investigations that are found inadequate. This is not theoretical — inspectors actively review harassment investigation files during workplace inspections.

Personal Liability: Supervisors and Directors Are Not Safe

One of the most misunderstood aspects of OHSA is the scope of personal liability. Under section 32.0.6, every employer must ensure that an investigation is appropriate in the circumstances. But OHSA's general duty provisions in sections 25, 26, and 27 create obligations for supervisors, and section 66 provides for personal liability of directors and officers.

Specifically:

- **Section 25(2)(h)** requires employers to take every precaution reasonable in the circumstances for the protection of a worker.

- **Section 27(1)** requires supervisors to ensure that workers comply with OHSA and to advise workers of potential or actual dangers.

- **Section 66** provides that where a corporation commits an offence under OHSA, every director or officer who fails to take all reasonable care to prevent the corporation from committing the offence is guilty of an offence and is personally liable to fines of up to $100,000 and/or imprisonment for up to 12 months.

This means a supervisor who ignores a harassment complaint, or a director who fails to ensure that proper investigation procedures are in place, can face personal prosecution under the provincial offences regime.

In Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Ltd., 2017 ONCJ 490, the Ontario Court of Justice examined personal liability under OHSA in a workplace safety context. The case confirmed that directors and officers cannot delegate away their responsibility to ensure compliance — they must take active steps to verify that the corporation's OHSA obligations are being met.

The Intersection with Human Rights Law

Workplace harassment that is connected to a prohibited ground of discrimination under the Human Rights Code — race, sex, disability, age, sexual orientation, and others — gives rise to overlapping obligations. The employer faces potential liability under:

- **OHSA** for failing to investigate and address workplace harassment.

- **The Human Rights Code** for permitting or condoning discrimination and harassment. The HRTO can award compensation for injury to dignity, lost wages, and other remedies.

- **Common law** for constructive dismissal if the harassment creates a toxic work environment, or for negligence in failing to provide a safe workplace.

An employee who is sexually harassed at work can simultaneously file an OHSA complaint with the Ministry of Labour, a human rights application at the HRTO, and a civil action for wrongful or constructive dismissal. The employer faces potential liability on three fronts — with different limitation periods, different standards of proof, and different remedial frameworks.

Reprisal Protections

Bill 132 also strengthened reprisal protections. Under section 50 of OHSA, employers are prohibited from retaliating against workers who report harassment or participate in an investigation. Reprisal includes termination, demotion, discipline, suspension, or any penalty imposed because the worker exercised their rights under OHSA.

The reprisal prohibition is enforced through the OLRB, which can order reinstatement, compensation for lost wages, and compensation for any other losses incurred by the worker. The Board has been robust in protecting workers who report harassment, even where the underlying complaint is not substantiated — because the right to report is independent of the outcome of the investigation.

Common Employer Mistakes

Years after Bill 132 came into force, employers continue to make the same errors:

1. **No written policy, or an outdated policy.** OHSA requires an annually reviewed written harassment policy. Many employers adopted a policy in 2016 and haven't updated it since.

2. **Investigating internally without proper training.** Using HR staff who lack investigation training, or who have conflicts of interest, produces inadequate investigations that expose the employer.

3. **Failing to inform the parties.** Both the complainant and respondent must be informed in writing of the results and corrective action. Many employers tell the complainant verbally and tell the respondent nothing.

4. **Retaliating against complainants.** The most expensive mistake. Reprisal claims under OHSA and the *Human Rights Code* can result in reinstatement, substantial compensation, and regulatory penalties.

5. **Treating the investigation as a formality.** A check-the-box investigation that fails to interview witnesses, review evidence, or reach reasoned conclusions is worse than no investigation at all — because it demonstrates willful non-compliance rather than mere oversight.

The Bottom Line

Bill 132 imposed real, enforceable obligations on Ontario employers. The definition of workplace harassment is broad. The investigation mandate is non-negotiable. Personal liability for supervisors and directors is available. And the reprisal protections mean that workers who come forward are shielded from retaliation.

Employers who treat this as a compliance afterthought are making a calculated bet that they won't face a complaint. That bet gets worse every year, as Ministry enforcement activity increases, HRTO damages escalate, and workers become more aware of their rights. The time to get this right was 2016. The second-best time is now.