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38 N O V E M B E R / D E C E M B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m he first anniversary of Ontario's Sexual Violence and Harassment Action Plan Act recently passed, and labour and employment law- yers in the province are getting a taste of how Bill 132 plays out in reality. "What we're seeing from the Ministry of Labour is more inter- vention than I thought we would see," says Shana French of Sherrard Kuzz LLP in Toronto. The difference with the new legisla- tion "comes in its teeth and the positive obligation on employers." The new obligations came into force on Sept. 8, 2016, and among other requirements, the bill amends the Occupational Health and Safety Act to state that: employers must have a written workplace harassment program and policy in place; clearly set out who would investigate claims if the alleged harasser is an employer or supervisor; and review the program at least once a year to ensure compliance. The bill also gives the Ministry of Labour the unprecedented authority to order an employer to hire — at the employer's expense — an outside investigator. "Where we're really seeing enforce- ment focused is on whether an inves- tigation was conducted," French says. "The Ministry of Labour is being highly interventionist in terms of compliance and appears to be defaulting to ordering a third-party investigation." Pre-Bill 132, French categorized workplace harassment as more of a reactive regulation by the Ministry of Labour. In the post-Bill 132 world, it's a more proactive compliance monitoring. Although the system seems to still be complaint based, French says she's also seeing, in terms of routine audits, the element of compliance coming up. Gillian Shearer, founding partner of Shearer Parnega LLP, says that over the last three to six months she's seen an increase in the number of sexual harassment investigations she's been asked to do and "more of an uptake or concern around, in particular, the need for investigators to be independent and to be seen to be independent." Shearer attributes this increase to the life cycle of the process. The bill came into play, investigations begin to wrap up a few months later and employees unhappy with the results — rightly or wrongly — know they have another avenue. They go to the ministry, which comes in to investigate the employer's process and then might order an inde- pendent investigator to come in. L E G A L R E P O RT \ L A B O U R & E M P L O Y M E N T JEANNIE PHAN Ontario's Sexual Violence and Harassment Action Plan Act means more intervention from government By Mallory Hendry Workplace sexual harassment T

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