6. Ways to address sexual harassment

When a person believes that she or he has been sexually harassed, she or he should try, where possible, to resolve the problem through any internal policies or resolution mechanisms the organization may have in place. However, while many companies now have internal human rights claim-resolution mechanisms, these procedures do not always replace a person's right to file a human rights claim with the HRTO, or to proceed in other ways.^[147] But even if a person has decided to pursue a remedy outside of an internal procedure, an organization must still investigate and respond appropriately to the incident, from both an individual and a systemic point of view.

6.1 Internal policies

Employers, housing providers, educators and other responsible parties have a legal duty to prevent and remedy incidents of sexual and gender-based harassment. Organizations must develop and adopt in-house anti-sexual harassment policies and make sure that responsible parties are properly informed and educated about the nature, effects and cost of this type of behaviour. See the section entitled “Preventing and responding to sexual harassment” for the suggested contents of an Anti-Sexual Harassment Policy. For more guidance, see the OHRC’s publication, Guidelines on Developing Human Rights Policies and Procedures.^[148]

6.2 Collective agreements

More and more collective agreements include specific clauses on preventing and resolving incidents of discrimination and sexual harassment in the workplace. In many cases, collective agreements incorporate the terms of the Ontario Human Rights Code in full, giving bargaining unit members the right to file grievances on alleged breaches of the Code. Many employers and labour representatives recognize their legal obligations under the Code, and their shared responsibility to keep workplaces free from sexual harassment. Therefore, a person who has experienced sexual harassment in the workplace may be able to file a grievance under an existing collective agreement.

6.3 OHSA claim

Where a person believes they have been sexually harassed in the workplace, they may have recourse under the Occupational Health and Safety Act.^[149] The OHSA defines “workplace harassment” as “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.” This definition includes both an objective and subjective component, like the definition of “harassment” in the Code. However, the definition of harassment in the OHSA is broader than the one in the Code, in that it includes any form of harassment, not just harassment based on one of the Code’s protected grounds (such as sex, race, disability, etc.). Contact Ontario’s Ministry of Labour for more information.

6.4 Other administrative bodies

The Supreme Court of Canada has made it clear that administrative decision-makers who have the power to consider questions of law also have the power to decide if another statute is inconsistent with the Code. If there is an inconsistency, the Code prevails unless the other statute expressly states that it overrides the Code.^[150] This means that if a person brings a claim before an administrative body (that is authorized to consider questions of law) and that action includes a component of sexual harassment, the administrative body must deal with the sexual harassment allegation.

Example: After months of rejecting her landlord’s requests to become intimate, a woman is evicted from her apartment suddenly and without warning. She files a claim with the Landlord and Tenant Board to challenge the eviction. The Landlord and Tenant Board has a responsibility to apply the Human Rights Code in its decision-making, and to consider the possibility that the eviction might be a reprisal by the landlord for the tenant rejecting his sexual advances, and thus a violation of the Human Rights Code.

6.5 Criminal charges

In more extreme cases, sexual harassment will be criminal in nature. This will be the case where the harassment involves attempted or actual physical assault, including sexual assault, or threats of an assault. It will also include situations of stalking, otherwise known as “criminal harassment.” Criminal harassment is obsessive behaviour directed towards another person. Section 264 of the Criminal Code defines criminal harassment as repeatedly following a person from place to place or repeatedly trying to contact that person over a period of time. The legislation also covers such behaviours as watching or keeping watch over someone’s home or workplace, and making threats against another person known to the victim. As a result of such behaviour, the victims have reasonable cause to fear for their safety or that of someone close to them.^[151] Where sexual harassment includes any of these components described above, people may want to contact their local police service.

6.6 HRTO application

Where a person believes that they were subjected to sexual or gender-based harassment, they can file an application with the HRTO. A human rights application should be filed within one year of the last incident of sexual harassment. The Human Rights Legal Support Centre may help people file human rights applications. Contact information is listed at the end of this policy.