TORONTO SEXUAL MISCONDUCT LAWYEERS
Our Firm is frequently retained to prosecute, investigate and defend private workplace investigations, including those related to sexual misconduct and harassment. The Firm’s comprehensive background in criminal defence associated with sexual assault, fraud and harassment, is why we are frequently retained by unions, academic institutions and insurance companies. We also represent the interests of the members and employees of large businesses and governments facing allegations of regulatory misconduct.
The process often walks a fine line between criminal and civil law. We have represented students facing allegations of sexual misconduct on campus and being investigated by academic institutions, where criminal charges have failed. As private investigators for our clients, we conduct workplace investigations associated with allegations of misconduct by fellow employees or management. Ultimately, reducing any civil liability the employer or organization may face should a person later allege inaction or suffer damages as a result.
These investigations include detailed reports, witnesses accounts and evidence related to the purported allegations, which can sometimes be used in other proceedings.
What is Workplace Sexual Harassment/Misconduct?
Workplace sexual misconduct refers to conduct or comments of a sexual nature that are made within an employment setting. This could be between two employees, between an employee and management, between two managers or could even involve the owners or directors of a company. In Ontario, The Occupational Health and Safety Act of 1990 defines workplace sexual harassment as follows;
(a) 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, or
(b) 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; (“harcèlement sexuel au travail”)
It is important to note that sexual harassment does not have to occur on company premises for it so be considered workplace sexual harassment. Sexual harassment that occurs during a work trip, at a company party or social event or at a meeting held outside the workplace will be considered incidents of workplace sexual harassment.
If you have been accused of workplace sexual harassment it is important to contact legal counsel immediately. Our Firm can help you navigate the impending investigation against you and provide you with all of the information you need to resolve the matter as quickly as possible with the best possible outcome.
Are Workplaces Obligated by Law to Investigate Sexual Misconduct Complaints?
Yes. In Ontario employers have a legal obligation, as outlined in the Occupational Health and Safety Act of 1990 (OHSA) to investigate complaints of sexual harassment in the workplace. Beginning in 2009, as stipulated in part III.01 section 32.0.1 (1) of the OHSA, employers are required to create policies regarding sexual harassment in the workplace. In addition, employers are required to review these policies as often as they can and at the very least annually. The employers policy on sexual harassment must be made in writing and placed out in the open within the workplace.
In addition to having a policy on workplace sexual harassment, employers are also legally obligated by the OHSA to protect workers from workplace sexual harassment. Part III.01 Section 32.0.7 (1) of the OHSA states that to protect their workers from workplace sexual harassment an employer shall investigate any complaints or incidents of harassment. After an investigation has been completed, the workplace is obligated to provide the results of the investigation, in writing, to both the complainant and the individual who has been accused. This document must also outline any corrective action that are to be taken to remedy the situation.
Who Conducts a Workplace Sexual Misconduct Investigation?
There is a significant amount of flexibility in regards to who may conduct an investigation into a claim of workplace sexual harassment. It is very common for workplaces to have someone internal to their operation, such as a senior manager, human resource staff or supervisor, investigate complaints of sexual harassment in the workplace. This is permitted as long as the individual conducting the investigation was not involved in the alleged harassment. The company may also elect to have an employee or official from another location such as a corporate office conduct the investigation. The individual conducting the investigation must have knowledge of the company’s sexual harassment policy prior to conducting the investigation.
In rare circumstances where the Ministry of Labour is not satisfied with the initial investigation, they may appoint a third party organization to investigate the matter at the company’s expense. In addition to being appointed by the Ministry of Labour, the company may also elect to hire a third party organization to conduct the investigation from the outset of the complaint. This may be a licensed private investigator, a lawyer or law firm, a human resource consultant or any other individual with the appropriate qualifications.
Some law firms in particular specialize in workplace sexual harassment and misconduct investigations and will utilize legal professionals to investigate the complaints that have been made. They will conduct thorough investigations of the claims, interviewing all necessary parties. Generally, once the investigation has completed, the firm will provide the workplace with a detailed report of their findings including remedies that may be appropriate in the situation. The potential remedies provided will need to be in line with the company’s sexual harassment policy, the criminal law of Canada, workplace health and safety regulations, and any other laws that are applicable in the situation. In addition to investigations, many of these firms also provide training and/or consulting services for employers who are creating their workplace sexual harassment policies.
It is important to note that if the third party conducting the investigation investigates workplace harassment complaints as part of their regular business, they will likely be required to be licensed to do so, generally as a private investigator or lawyer.
How do Workplaces Enforce Sexual Harassment Policies?
Once a complaint of workplace sexual harassment had been made to an employer they have an obligation to investigate that complaint and provide the complainant and the accused with a written copy of the results of the investigation, as well as any corrective actions that will be taken. Though the Occupational Health and Safety Act does not specifically stipulate enforcement measures, it does provide that employers are legally obligated to keep their workers safe from workplace harassment. This means that the way a company enforces its sexual harassment policy may differ, however it must enforce it once it discovers harassment has in fact occurred.
If a workplace fails to adequately investigate and remedy a situation of workplace sexual harassment, they may be reported to the Ministry of Labour who will then launch an investigation into the company’s compliance with the Occupational Health and Safety Act. Non-compliance can lead to serious implications including large fines. As such, employers are often diligent in investigating complaints of workplace sexual harassment from the outset.
What are the Consequences of being Found to have Committed Workplace Sexual Harassment?
The most common consequence of being found to have sexually harassed a co-worker is being disciplined within the work place. Depending on the severity of what occurred, the company’s policy on sexual harassment and the information discovered through the investigation, the accused could be required to take or re-take workplace sexual harassment courses or workshops, be suspended from their job, demoted, or even terminated.
The most serious consequence associated with being found to have committed workplace sexual harassment is being charged with a Criminal Code violation. In more serious cases, if enough evidence is found through the investigation, the information discovered may be turned over to police for formal criminal charges to be laid against the accused. Depending on the severity of the incident, this could lead to being charged and convicted of with a section 271 Sexual Assault, a section 272 Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm or even a section 273 Aggravated Sexual Assault. These are all very serious offences which have the potential of resulting in a lengthy term of imprisonment for the offender.
The consequences that will arise depend greatly on the facts of the case and can vary significantly. Given the seriousness of being accused of sexual harassment, it is important to contact qualified legal counsel immediately. Our Firm can help you navigate the allegations that have been made against you and provide you with all the necessary information you will require through the process to avoid criminal charges being laid.
Sexual Harassment on University Campuses
Universities and colleges all over Canada have begun implementing policies for dealing with sexual harassment and sexual misconduct on campuses as the issue has become more and more prevalent in the media. Though there is no legal obligation for universities or colleges to implement sexual harassment on campus policies, many have begun to do so.
For example, the University of Waterloo has implemented a detailed policy regarding sexual harassment on its campuses. The policy applies to staff members, members of the administration, professors, students and anyone else working on the university campus. The policy outlines a zero tolerance approach to sexual harassment and protects against reprisal for those who report being sexually harassed. The policy stipulates that once a report of sexual harassment has been made, the university is obligated to launch a thorough investigation into the complaints and respond appropriately. The appropriate remedy will vary depending on the particular circumstances however there are no specific guidelines in the policy on how to remedy incidences of sexual harassment.
What are the Consequences of Sexually Harassing Someone on a University Campus?
There are currently no legally binding rules regarding punishment for those who have been found through internal investigations to have sexually harassed another individual in a university setting. That being said, many schools have implemented policies on how to deal with such scenarios. Punishments can range from school suspensions, from being removed from classes with the alleged victim, to academic consequences, being expelled from school or even having criminal charges laid. In more serious cases where criminal charges are laid, a criminal conviction could lead to serious implications for the accused including having a criminal record, having to serve a term of imprisonment and/or having to register as a sex offender.
Due to the seriousness of the allegation of sexual harassment, we advise that you contact legal counsel immediately. Our Firm can help defend the allegations against you and guide you through the investigation process and beyond.