Jewitt McLuckie is proud of Jeff Meleras who obtained an important victory for his client when faced with a motion to strike their lawsuit.

In Locke v Ontario Police Services et al, the Ontario Superior Court dismissed the defendants’ motion to strike the plaintiff’s statement of claim that alleges that, in 1999, the plaintiff reported sexual assaults that she had been subject to as a 12-year-old and that the police’s determination that she had consented to the sexual activity constituted malfeasance in public office. The defendants argued that the claim should be struck because it was launched too late and because the lawsuit did not set out facts that can support a claim of malfeasance of public office.

The Ontario Superior Court found that the plaintiff’s claim was not launched too late and that the plaintiff’s lawsuit was proper such that it can proceed. The Court further commented that the notion that the plaintiff could have consented to the sexual assault as a minor fell within the realm of misfeasance, and that to not lay a charge on this basis is a blatant disregard of the law of sexual assault and the Criminal Code.

On September 8, 2016, Ontario’s Sexual Violence and Harassment Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) came into effect and introduced significant legislative changes to the Occupational Health and Safety Act and The Ministry of Training, Colleges and Universities Act.  This article sets out a very brief summary of the key legislative amendments and accompanying policy initiatives.

OHSA Amendments

As a result of these legislative reforms, the definition of “workplace violence” in the OHSA has been amended to include “sexual harassment” and new obligations have been imposed on employers including:

An obligation to develop a workplace harassment program aimed at preventing harassment in the workplace, including sexual harassment. This program must be developed and maintained in consultation with any joint health and safety committee or health and safety representative;

• An obligation to establish a complaint mechanism for workplace harassment complaints along with an investigation procedure; and
• An obligation to notify, in writing, both the complainant and respondent of the results of any investigation and corrective action taken.

The Act also makes it clear however that, “reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.”

In anticipation of these legislative changes, the Ministry of Labour published a Code of Practice to Address Workplace Harassment under the OHSA which sets out guidelines for employers to follow in order to ensure compliance with the Act and provides sample policies.  The Code is available online here: https://www.labour.gov.on.ca/english/hs/pubs/harassment/

Amendments to the Universities Act

The Universities Act has also been amended to include the following definition of “sexual violence”:

“sexual violence” means any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.

In addition, every college of applied arts and technology and every university in the province that receives regular and ongoing operating funds from the government for the purposes of post-secondary education is required to develop a sexual violence policy that includes a complaint process, considers student input in developing the policy, regularly reviews the policy and reports sexual violence statistics to the Minister.

Sexual Violence and Harassment Training Projects for Frontline Workers

Coincident with the legislative amendments coming into force, the Province also announced $1.7 million in funding for 6 sexual violence and harassment training projects for frontline workers:

Training will be developed for frontline workers and management in the hospitality sector to recognize and intervene when they witness harassment in the workplace;

• Training will be developed for servers, bartenders and management in the food and beverage industry to improve safety for workers and patrons;
• Frontline workers in the health and community services sector will be trained on the range of psychological reactions and resulting behaviour that sexual assault survivors may exhibit;
• The Ganohkwasra Family Assault Support Services will train community service workers on supporting indigenous women impacted by sexual violence;
• The Centre ontarien de prevention des agressions will train French language educators on how to respond to disclosures of sexual violence or harassment in schools; and
• The Centre for Research and Education on Violence Against Women and Children will develop training for campus support workers on how to intervene and provide support if they witness or become aware of gender based violence.

Article: Alison Longmore

Image credit: “Survivors in the Sun” by Wolfram Burner.  Via Flickr Creative Commons licence