By Emily Slessor

This general legal information (not legal advice) is subject to change, and there may be exceptions based on your specific circumstances. You should obtain independent legal advice before taking any action which may impact your legal rights. If you are an employee or an employer and need legal advice regarding discipline or termination of employment surrounding time theft, an OA lawyer will be pleased to assist you with your situation.

In Ontario, employers have a statutory obligation to address and investigate workplace harassment and discrimination. These duties arise under both the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (the Code), and they go beyond simply responding to formal complaints. As recent case law confirms, these responsibilities demand timely, impartial and thorough action – regardless of how or when an issue comes to the employer’s attention. 

The Scope of the Duty to Investigate

Under the OHSA, employers are required to develop a workplace harassment policy and program setting out clear reporting mechanisms and describing how investigations shall be conducted. Where incidents or complaints of harassment arise, employers must ensure that a timely, objective and good faith investigation is carried out. These investigations must be free from bias, and their findings must inform appropriate remedial action. Notably, the OHSA empowers the Ministry of Labour to order an independent third-party investigator – at the expense of the employer – where an internal investigation may not be sufficient or appropriate. 

The Human Rights Code imposes and parallel and, in some cases, overlapping duty. Where a complaint involves harassment or discrimination related to a protected ground under the Code such as race, gender, disability, or religion – employers must conduct a reasonable investigation and take appropriate steps to address the issue. The failure to do so can result in findings of liability at the Human Rights Tribunal of Ontario, even if the original complaint was unsubstantiated. 

In either context, a failure to investigate or an investigation that lacks impartiality, timeliness, or thoroughness, can expose the employer to liability. 

Clarifying the Employer’s Duty: Recent Case Law 

Two recent decisions help clarify the scope and practical implications of the employer’s investigative obligations. 

In Metrolinx v Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, the Divisional Court considered a situation where an employer, during an unrelated investigation, became aware of sexist and derogatory comments made by employees in a private online chat. The targeted employee, having received screenshots of the messages, reported them to her supervisor but declined to file a formal complaint or participate in the employer’s formal process. Despite her decision, the employer proceeded to investigate the matter independently. The Court held that this response was not only appropriate but necessary. An employer’s duty to investigate does not depend on a complainant’s willingness to participate or the filing of a formal complaint. The Court emphasized that this obligation exists to protect the broader workplace, as unaddressed misconduct of this nature can harm workplace culture and compromise psychological safety for all employees.

In Bidwai v Ontario Teachers’ Pension Plan Board, 2024 HRTO 1092, the Human Rights Tribunal of Ontario considered the employer’s conduct following the conclusion of a workplace investigation. While the investigation itself had been completed, the employer failed to inform the complainant of the outcome of their investigation. The Tribunal found this omission to be a breach of the employer’s obligations under the Code. Simply put, the duty to investigate includes an obligation to communicate the findings of the investigation and steps taken to address the complaint(s) to all complainants. 

How O’Neill Associates LLP Can Help 

Lawyers at O’Neill Associates LLP regularly act as neutral, independent investigators in workplace harassment and discrimination matters. Our team understands the complexities of modern workplaces and the challenges employers face in responding to complaints promptly and appropriately. Whether you require a third-party investigator or support in building preventative frameworks to reduce risk going forward, our firm is equipped to provide responsive, reliable, and effective legal solutions tailored to your organization’s needs.