Employers are obligated to create a workplace free from harassment or any form of discrimination. Therefore, employers should take workplace harassment complaints seriously and address them expeditiously. However, not every harassment complaint requires an investigation. It is crucial to understand what harassment is and consult with experienced legal counsel quickly to determine a sufficient and cost-effective approach.

Defining workplace harassment

Not all objectionable workplace conduct is harassment. Rather, harassment is defined as conduct that a reasonable person in the complainant’s position would consider unwelcome, vexatious, and abusive.

If a co-worker or superior’s improper conduct, behaviour, or actions could be deemed unwelcome to a reasonable bystander in the complainant’s circumstances, it will constitute workplace harassment. In each case, however, whether an employee was subjected to harassment would be mostly fact-driven.

Section 1(1) of the Occupational Health and Safety At (“OHSA”), reproduced below, defines both workplace harassment and sexual harassment:

“workplace harassment” means,

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b)  workplace sexual harassment; (“harcèlement au travail”)

“workplace sexual harassment” means,

(a)  engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b)  making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome; (“harcèlement sexuel au travail”)

 

When to investigate

Employers in Ontario have statutory obligations to investigate discrimination and harassment allegations under the OHSA and the Human Rights Code (“Code”).

In Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, the Human Rights Tribunal of Ontario (“HRTO”) recognized the procedural obligation on employers to investigate a harassment complaint based on discriminatory practices under the Code. This means employers will be legally liable if genuine complaints of discrimination or harassment allegations are not addressed in the workplace. Additionally, even in the absence of a complaint by an employee, employers with actual or constructive knowledge are obligated to address workplace misconduct. However, this is not to say that an employer must, in all circumstances, trigger a full-blown investigation. Employers can dismiss a harassment claim where their preliminary findings point out that the allegations are unfounded or the complainant’s requests for accommodation are unwarranted. In all situations it is likely wise to consult legal counsel before doing so.

Reducing liability through proper investigation

An effective and appropriate workplace investigation into claims of harassment can reduce an employer’s liability. For example, in Robichaud v. Canada, [1987] 2 SCR 84, the Supreme Court of Canada stated:

An employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps.

By contrast, a biased and inadequate investigation in a case of harassment would result in a damages award. Such was the case in Doyle v. Zochem Inc, 2017 ONCA 130. The Ontario Court of Appeal found that the employer’s investigation into a case of sexual harassment was shoddy and unfair. This warranted moral and human rights damages in favour of the harassed employee.

Hiring an ill-equipped investigator or using a potentially biased employer’s representative to undertake harassment investigations into sensitive complaints involving senior management or complex  situations could have two effects:

• It will affect workplace morale negatively.
• It will enhance a damages award in favour of the claimant.

Accordingly, employers should at all times take time to consider: does the complaint raise discrimination or harassment allegations that make an investigation necessary? What kind of investigation is appropriate in the circumstances? Is it necessary to retain an external investigator? Employers will want to ensure that they have someone able to assess misconduct allegations to determine if, based on the evidentiary record, harassment occurred. If the investigator is a lawyer, they will also be able to provide the employer with legal advice.