Ontario Municipal Human Resources Association

Under Ontario’s Occupational Health and Safety Act (OHSA), employers have a duty to investigate incidents and complaints of workplace harassment. This obligation is engaged whenever the employer becomes aware of conduct that may constitute harassment, even if no formal complaint is filed or the affected employee asks that no action be taken. In Metrolinx v. Amalgamated Transit Union, Local 1587 (2024 ONSC 1900), the Division Court confirmed that the employer’s duty to investigate is not just owed to the victim or complainant. Employers have a broader obligation to protect all employees and ensure they all have a safe work environment. As a result, failing to investigate can expose employers to Ministry of Labour orders, grievances, human rights complaints, and other forms of liability.

The term “incidents” in section 32.0.7 has been broadly interpreted to include many situations that may come to the employer’s attention, including anonymous complaints, off- duty conduct, and incidents where complainants or victims are reluctant to come forward (see E.S. Fox Limited v A Director under the Occupational Health and Safety Act, 2020 CanLII 75931 (ON LRB).

When does the duty to investigate arise?

The duty to investigate may arise where:

• A worker makes a verbal or written complaint to a supervisor, human resources, or another designated person.
• Management directly observes harassing or inappropriate behaviour.
• Anonymous complaints or third-party reports (such as rumours or group messages) suggest incidents of harassment and/or a toxic workplace.
• Any information comes to light indicating that harassment may be occurring.

These events will not always trigger a formal investigation. Employers should conduct a threshold assessment when they receive such information to determine how to proceed. The key question is whether the alleged conduct, if true, would violate the OHSA, the Human Rights Code, and/or internal workplace policies. If the answer is yes, an investigation of some form must proceed.

Investigate as appropriate

The OHSA requires that employers investigate incidents and complaints of workplace harassment as appropriate in the circumstances. But what does this mean? The Ministry of Labour Code of Practice to Address Workplace Harassment outlines several essential elements to guide employers.

1. Timeliness: Investigations must begin promptly and should be completed within 90 days, unless there are compelling reasons for delay.
2. Objectivity: The investigator must be independent and impartial. They should not be involved in the allegations or report directly to the alleged harasser.
3. Confidentiality: Information about the complaint must be kept confidential and be disclosed only as necessary to investigate, take corrective action, or comply with legal requirements.
4. Thoroughness: A proper investigation requires reasonable efforts to:

• interview the complainant(s), respondent(s), and relevant witnesses;
• ask detailed, fact-specific questions about what was seen, heard, or experienced;
• collect and review relevant evidence, including emails, text messages, and other records; and
• maintain detailed and accurate notes throughout the process.

Core Employer Responsibilities

When responding to incidents or complaints of alleged harassment, employers must:

• Proceed with Available Information: A threshold assessment or investigation of some form should proceed even if evidence is incomplete or the complainant is reluctant to participate. Employers are expected to gather and assess all available information.
• Ensure a Proper Process: Whether handled internally or by an external investigator, the investigation must be fair, unbiased, and conducted by someone with appropriate expertise.
• Document Findings and Take Action: If the investigation substantiates the allegations, the employer must implement corrective measures and inform the parties. This may include discipline, workplace training, or policy changes. Importantly, action may be required even if the complainant does not support or participate fully in the process.

Is your investigation appropriate in the circumstances?

The duty to investigate incidents and complaints of workplace harassment as appropriate in the circumstances does not require a rigid, one-size-fits-all response. Instead, it requires that employers tailor their response to the nature, seriousness, and complexity of the allegations.

A minor incident can be responded to with a preliminary assessment or streamlined investigation, while serious or systemic allegations will require a more formal and comprehensive approach, possibly involving an external investigator. In either case, the process must be timely, fair, thorough, and objective.

Ultimately, what is appropriate in the circumstances reflects a standard of reasonableness. Employers must demonstrate that they took the concern seriously, assessed it carefully, and responded in a way that protects all workers and supports a safe and respectful workplace.

Written by: Joy L. Hulton, LLB, Q. Med, Q. Arb, Hulton Workplace Resolutions