Williams HR Law LLP

STOP CYBERBULLING IN ONTARIO DAY 2022: GUIDE TO EMPLOYERS’ OBLIGATIONS FOR PREVENTING AND RESPONDING TO CYBERBULLYING

June 15, 2022

Overview

The second annual Stop Cyber Bullying in Ontario Day will be held on Friday, June 17, 2022. The Ontario provincial government enacted the Stop Cyberbullying in Ontario Day Act, 2020 [SCODA] on September 24th, 2020, to raise awareness and encourage discussions in schools and workplaces in order to provide children and adults with the tools they need to protect themselves from cyberbullying. As more and more employers have transitioned or are transitioning to remote or hybrid work arrangements, the need to proactively address cyberbullying in the workplace is more pressing than ever before.

What is Cyberbullying?

Despite its prevalence in Canadian workplaces, there is no universal definition for “cyberbullying”. However, the SCODA states that cyberbullying “consists of electronic communication that, directly or indirectly, causes or is likely to cause harm to another individual’s physical or mental health and wellbeing. It can include intimidation, threats and harassment and can have significant and lifelong negative effects on children and adults.”

Examples of cyberbullying in the workplace include using emails, text messages, social media platforms, or other means of electronic communication to:

  • tease, belittle or demean another person in the organization;
  • deliberately exclude another person in the organization from online social exchanges (e.g., instant messaging or email conversations);
  • spread rumours;
  • create, post and/or distribute sensitive, private and/or embarrassing information or images; and
  • impersonate someone in the organization or create a false identity to deceive another individual.

Employer Obligations

Employers in Ontario have a general duty under the Occupational Health and Safety Act [OHSA] to take every precaution reasonable in the circumstances for the protection of a worker. In addition to this general duty, the OHSA sets out specific requirements for employers with respect to “workplace harassment”, including the requirement to prepare a workplace harassment policy, develop and maintain a written program to implement the policy, and investigate incidents and complaints of workplace harassment.

Although the OHSA does not specifically address “cyberbullying”, “workplace harassment” and “workplace sexual harassment” have generally been interpreted to include cyberbullying. Therefore, employers should treat their obligations related to workplace harassment as extending to cyberbullying, and should take steps to ensure that employees are not subjected to cyberbullying from their coworkers, supervisors or third parties.

Employers who fail to carry out their obligations under the OHSA may be liable to a fine, imprisonment or both. They may also be held vicariously liable for workplace harassment or workplace sexual harassment (including cyberbullying) committed by employees. In some cases, an employer’s failure to appropriately respond to cyberbullying can form the basis of a costly constructive dismissal action and/or a workers’ compensation claim.

Takeaways for Employers

Employers should utilize Stop Cyberbullying in Ontario Day as an opportunity to reflect on and proactively assess their policies and practices with respect to electronic communications. In addition to reducing their exposure to liability under the OHSA, employers that take steps to prevent cyberbullying stand to gain additional benefits, including an increase in employee productivity, morale and retention.

In order to proactively address workplace cyberbullying, employers should consider taking the following steps:

  1. develop and implement a cyberbullying policy, or revise existing workplace harassment policies, including to outline:
    • that the employer has zero tolerance for workplace cyberbullying, and that the “workplace” is not limited to the physical office, and may include social media platforms accessed both during and outside of working hours;
    • reporting procedures with respect to cyberbullying;
    • that no reprisal will occur as a result of coming forward with a good faith cyberbullying complaint; and
    • disciplinary measures that may be taken;
  2. train management and employees on all applicable policies;
  3. create or modify electronic monitoring policies to reserve the right to monitor communications sent via the company’s network or using company-issued devices, such as cellphones and laptops, to identify cyberbullying in the workplace;
  4. implement or amend a social media policy that outlines expectations for acceptable use of social media in the workplace, as well as the consequences for misuse; and
  5. investigate cyberbullying complaints in the same manner as in-person bullying or harassment complaints, and retain records of these investigations.

Expertise