Summary
In a recent decision, the Ontario Labour Relations Board (OLRB) provided welcome guidance on what the Occupational Health and Safety Act requires when employers investigate workplace harassment complaints. In this article, we review the Board’s decision and highlight practical lessons for employers conducting workplace investigations in Ontario.
The Facts
The Applicant was employed by the Corporation of the County of Lambton (the “County”) as a Municipal Prosecutor. She filed a workplace harassment complaint alleging that she had been subjected to harassment by courthouse staff and others with whom she interacted through her work. The County investigated the complaint and determined that the allegations were not substantiated.
The Applicant then complained to the Ministry of Labour, Immigration, Training and Skills Development that the County had not conducted an investigation “appropriate in the circumstances,” as required by the Occupational Health and Safety Act, RSO 1990, c O.1 (the “OHSA”). A Ministry inspector declined to issue any orders, finding no violation of the OHSA.
The Applicant appealed the inspector’s decision to the Ontario Labour Relations Board (the “Board”).
The Board’s Decision
The central issue before the Board was whether the County’s investigation met the OHSA requirement that incidents and complaints of workplace harassment be investigated in a manner “appropriate in the circumstances.” The Board noted that the OHSA does not contain any specific or prescriptive requirements of what makes an investigation appropriate in the circumstances. However, the Board held that the words “appropriate in the circumstances” should be interpreted with regard to the purposes of the OHSA: to protect the health and safety of workers and, more specifically, to protect workers from workplace harassment.
Importantly for employers, the Board confirmed that the focus is not whether the investigator reached the “right” conclusion. Making findings of fact is the investigator’s role. However, when a Ministry inspector or the Board is tasked with reviewing a workplace investigation, the inquiry will focus on the investigator’s procedure. In particular, the focus must be on “whether the investigation was fairly and appropriately undertaken in a manner that would permit an employer to determine whether workplace harassment occurred.” In order to be “appropriate in the circumstances”, an investigation must include a consideration of the rights and interests of the complainant(s), the respondent(s), and the integrity of the investigation itself.
Applying that framework, the Board accepted several aspects of the County’s investigation process. The internal investigator — the County’s Senior Labour Relations Consultant — was an appropriate individual to conduct the investigation because he was familiar with the OHSA, the County’s workplace policies, and he routinely conducted workplace investigations on behalf of the County. The Board was also satisfied that the complaint was taken seriously and that the investigation began promptly.
However, the Board identified several procedural gaps in the investigation. The investigator did not interview all of the relevant witnesses or respondents identified in the complaint. The complainant was also not given an opportunity to respond to information gathered during the investigation, despite having been told that she would have an opportunity to do so.
The Board specifically observed that “an investigation that is appropriate in the circumstances does not necessarily include an investigation into each and every allegation, or that each and every person identified in a complaint must be interviewed.” This is because workplace investigations are fact-specific, and investigators must have some latitude in determining the conduct of the investigation, subject to the requirements of procedural fairness. In this case, however, the investigator did not explain why it was unnecessary to interview anyone beyond one respondent. Without this explanation, and without giving the complainant a chance to respond to potentially relevant information, the Board could not conclude that the investigation was “appropriate in the circumstances.”
Takeaways
This decision is significant because it provides some of the Board’s clearest guidance to date on what the OHSA requires of workplace harassment investigations. For employers, the key message is that an investigation need not be perfect, but it must be thoughtful, fair, and capable of supporting a reasoned conclusion.
Several practical lessons flow from the Board’s decision:
- Process matters: A Ministry of Labour inspector or the Board will not consider whether the investigator arrived at the “right” result in their investigation, but they will examine whether the investigation process was fair.
- Scope should be deliberate: Investigators do not necessarily have to interview every witness or investigate every allegation raised by the complainant, but they should be able to explain why certain steps were or were not necessary.
- Procedural fairness remains central: Where information gathered during an investigation may affect the outcome, employers should consider whether the complainant or the respondent need a meaningful opportunity to respond.
- Internal investigations can be appropriate: An internal investigator may satisfy the OHSA standard where they have relevant knowledge, experience, and independence in the circumstances.
- Documentation is critical: Employers should record not only what investigative steps were taken, but why key decisions were made about scope, witnesses, and follow-up.
Ultimately, the Board’s decision underscores that a defensible workplace harassment investigation depends not on perfection, but on a fair, deliberate, and well-documented process.
Need More Information?
For assistance with workplace investigations, please contact Catherine Phelps at cphelps@filionlaw.com or your regular lawyer at the firm.