Workplace Harassment Investigations in Ontario: What Good Process Looks Like

A good workplace harassment investigation in Ontario is objective, thorough and proportionate. The Occupational Health and Safety Act requires employers to ensure that an investigation appropriate in the circumstances is conducted, and that the worker who allegedly experienced harassment and the alleged harasser, if they work for the employer, are told the results and any corrective action in writing. The province's code of practice shows one way to comply. Federally regulated workplaces follow a different process under the Canada Labour Code.

What the Act requires

Under Ontario's Occupational Health and Safety Act (OHSA), the employer's written harassment program, developed in consultation with the joint health and safety committee or representative, if any, must set out how incidents or complaints will be investigated and dealt with, when information may be disclosed (only where necessary to investigate or take corrective action, or where otherwise required by law), and how the parties will be told the results and any corrective action.

Workplace harassment means a course of vexatious comment or conduct against a worker in a workplace, including virtually, that is known or ought reasonably to be known to be unwelcome, or workplace sexual harassment. Reasonable action by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment. Workplace violence has a separate program duty.

The code of practice as a benchmark

Following the Minister-approved Code of Practice to address workplace harassment is one way to comply, not the only way, but an employer adopting a part of it must follow all of that part to be deemed in compliance.

The investigation duty does not depend on a formal complaint: the OHSA covers incidents as well as complaints, and the code confirms it covers informal complaints and incidents the employer otherwise learns of, such as through a supervisor or a third party.

Who should investigate

The OHSA does not say who must investigate. Under the code, the investigation must be objective: the investigator must not be directly involved in the matter or under the alleged harasser's direct control, and should know how to investigate. The code's program must indicate when an external investigator will be retained, such as for allegations against an owner or senior executive. An inspector may also order an investigation by an impartial person at the employer's expense.

The seven minimum steps

Under the code, the investigator must at a minimum:

1. Keep the investigation confidential, disclosing identifying information only where necessary to investigate or required by law, and remind everyone involved of the program's confidentiality requirements.
2. Thoroughly interview the complainant and the alleged harasser, or make reasonable efforts if a known alleged harasser is not the employer's worker.
3. Let the alleged harasser respond to the specific allegations and, in some circumstances, the complainant reply.
4. Separately interview relevant witnesses employed by the employer, and make reasonable efforts with those who are not.
5. Collect and review relevant documents.
6. Take appropriate notes and statements during interviews.
7. Write a report summarizing the evidence, with findings of fact and a conclusion on whether harassment was found.

The OHSA sets no deadline, but the code calls for completion within 90 calendar days unless extenuating circumstances warrant longer, such as more than five witnesses or a key witness unavailable due to illness. The parties should be updated periodically.

Proportionate, not one size fits all

In the code's examples, a bar patron harassing staff may not need a lengthy investigation, while co-worker sexual harassment over time may be more complex. The code's program must also describe interim measures available during the investigation. The Ministry says mediation cannot replace the investigation, though, if the parties agree, it may form part of the resolution afterwards. In a unionized workplace, the collective agreement may address the union's role.

Results, records and reprisal

The results are a summary of the findings, not the investigation report. Under the code, results and any corrective action go out in writing within ten calendar days of the investigation concluding. Where harassment was found, the corrective action notice must indicate the steps taken or planned to prevent a similar incident.

Results and investigation reports are not health and safety reports the employer must share with the committee or representative. Under the code, records must be kept for at least one year after the investigation concludes.

The OHSA prohibits reprisals for complying with the Act or seeking its enforcement, which the Ministry says includes reporting harassment, and the code requires the harassment policy to state that workers are not to be penalized for reporting or taking part in an investigation. A worker alleging an OHSA reprisal may go to arbitration under a collective agreement, if any, or to the Ontario Labour Relations Board.

Federally regulated workplaces follow a different process

The OHSA does not apply to workplaces under federal jurisdiction, such as banks, airlines and telecommunication companies. They fall under Part II of the Canada Labour Code and the Work Place Harassment and Violence Prevention Regulations.

Efforts to resolve a reported occurrence must begin within 45 days of notice, the parties may agree to conciliation, and an investigation must be carried out if the matter is not resolved and the principal party requests it.

The investigator must be trained in investigative techniques, have relevant knowledge, training and experience, know Part II and the Canadian Human Rights Act, and confirm in writing that they have no conflict of interest. The report sets out conclusions and recommendations without revealing anyone's identity. The employer and the work place committee or representative jointly decide which recommendations to implement (if they cannot agree, the employer's decision prevails), and the employer must implement them. The resolution process must generally be completed within one year of notice.

Getting support

Zamat Workplace Solutions supports employers, unions, boards and growing organizations with workplace investigations, performance management and discipline, human rights and accommodation, grievance strategy and collective agreement interpretation.

Frequently asked questions

The content of this site is general information and is not legal advice. Contacting the practice does not create a solicitor-client relationship. Appointment of a mediator or arbitrator is subject to confirmation and conflict screening.