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Under the provisions of the Ontario Human Rights Code (the “Code”) , every employee has a right “to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or another employee”. Sexual harassment is considered to be discrimination on the basis of sex, and according to the Ontario Human Rights Commission (the “Commission”), may take a variety of forms, including the following:

• Gender-related comments about an individual's physical attributes, characteristics or mannerisms
• Unwelcome physical contact
• Suggestive or offensive remarks or innuendos about members of a specific gender
• Propositions of physical intimacy
• Gender-related verbal abuse, threats or taunting
• Leering or inappropriate staring
• Bragging about sexual prowess
• Demands for dates or sexual favours
• Offensive jokes or comments of a sexual nature about an employee
• Display of sexually offensive pictures, graffiti, or other materials
• Questions or discussions about sexual activities
• Paternalism based on gender which a person feels undermines her self-respect or position of responsibility
• Rough and vulgar humour or language related to gender

A person, who believes his or her right (to freedom from harassment in the workplace) has been infringed, may file a complaint with the Commission. The Commission is required to both conduct an investigation into the complaint and attempt to settle it. If the Commission is unable to affect a settlement of a complaint, and if it determines that the evidences warrants an inquiry, the Commission may request that a Board of Inquiry (the “Board”) be appointed to determine whether there has been a violation of the Code .

The mandate of the Board is to determine (by holding a hearing) whether there has been an infringement of the rights set out in the Code . Where it determines that such an infringement has occurred, the Board will affect an appropriate remedy (including an order directing an employer to take any action required to achieve compliance with the Code ). Such remedy could include: an order of reinstatement of the employee who filed the complaint (if requested); an order of restitution for losses; an award of damages for humiliation and loss of dignity; and an award of damages for mental anguish where there has been a willful and reckless infringement of the Code.

It is important to note that in Ontario , there is no “tort” (actionable wrong) of sexual harassment, so an employee cannot sue his or her employer in the courts. The courts have consistently held than an employee can only advance a claim of sexual harassment (discrimination) against his or her employer by filing a complaint with the Commission (as detailed above).

It is also important to note that the Commission strongly encourages employers to develop internal harassment policies to deal expeditiously with workplace incidents of sexual harassment. As a result, many Ontario employers have introduced sexual harassment policies which both delineate what workplace conduct constitutes sexual harassment, and establish a procedure for investigating and remedying employee complaints of harassment. An employee who believes he or she has been subject to sexual harassment at work can thus file a complaint under his or her employer's internal complaint procedure without involving the Commission (and this in-house route may prove to be more expeditious and cost-effective). An employee who files a complaint pursuant to an employer's internal policy, however, is not thereby precluded from filing a sexual harassment complaint with the Commission.