The Employer’s Legal Duty to Investigate
Although there is an abundance of non-legal reasons to properly conduct workplace investigations into harassment and bullying complaints, what’s the bottom line from a legal standpoint? What is the standard of legal compliance in this area?
As lawyers and HR professionals are fully aware, our laws come from both statutes created by the legislature and from the common law (Judge made law). The laws are always changing with successive governments and new court decisions.
Current State of the Law in Canada
The state of the law regarding a duty to investigate workplace-related complaints and/or incidents has evolved quickly over the past few years with several Provinces updating and clarifying statutory duties. In terms of legislation, the legal duty to investigate can be found in human rights, occupational health Safety legislation, and the Canada Labour Code.
- The Statutory Duty to Investigate:
Human Rights & Discrimination
In Ontario, this duty was spelled out in Laskowska v. Marineland of Canada, 2005 HRTO 30 which clarified the procedural duty to investigate potential Ontario Human Rights Code violations. The HRTO identified several important considerations in this respect which make up the Wall[1] test:
- Whether the employer had a human rights or equity, diversity, and inclusion policy;
- Whether the employer provided training on these policies;
- Whether the employer dealt with the complaint promptly and sensitively;
- Whether the employer reasonably investigated the complaint;
- Whether the employer resolved the complaint fairly, with a safe work environment, and adequate communication to the complainant.
Ultimately, this test is designed to determine whether an employer has ‘acted reasonably’ in the circumstances. Similar statutory obligations apply in most Provinces across Canada, including in Alberta.
Importantly, several court and tribunal decisions highlight the fact that employers who act quickly and fairly in responding to human rights complaints, will be rewarded.[2]
Occupational Health & Safety Legislation
In addition, many Provinces have now added the duty to investigate workplace harassment, bullying and violence, into Occupational Health & Safety Legislation. In Alberta, Part 27 of the Occupational Health and Safety Act now requires employers to:
- define workplace harassment and violence in all forms, including domestic and sexual violence;
- require employers to investigate incidents of violence and harassment and take corrective action;
- require employers to develop violence and harassment prevention plans;
- require review of plans at least once every 3 years; and,
- require employers to advise workers of treatment options if harmed by violence or harassment; workers are entitled to wages and benefits while attending treatment programs.
Similar requirements can be found in the Ontario Occupational Health and Safety Act (“OHSA”), but with some notable differences: in Ontario, employers must draft a workplace harassment policy and include within it a process for investigating complaints, and this investigation must be appropriate in the circumstances. Further, Ontario employers must inform the complainant, in writing, as to the investigation results and any corrective actions.
Importantly, Bill 132 grants OHSA inspectors the power to order an employer to retain at its own expense, an impartial person to investigate workplace harassment.
As with human rights and discrimination complaints, Canadian employers should anticipate that these occupational health and safety obligations will require a level of ‘reasonableness’ in their performance. Although the Alberta legislation does not explicitly define “investigation,” employers should read-in an implied duty to discharge the investigation and any corrective action, in a fair, efficient, and reasonable manner.
Federally Regulated Workplaces
Perhaps the most extensive and rigorous legislative regime in Canada regarding investigations, can be found within the Canada Labour Code’s Work Place Harassment and Violence Prevention Regulations.[3] Following a failed conciliation attempt under Section 23 or 24 of the regulations, “an investigation of the occurrence must be carried out if the principal party requests it.”[4] From there, the Regulations set out detailed requirements ranging from selecting an investigator, confidentiality, relevant information, and the nature and substance of the Investigator’s report.[5]
- Duty to Investigate under the Common Law
In addition to the various legislative regimes in Canada, the issue has been discussed in several key employment law decisions over the years. While the Courts have stopped short of a clear requirement for employers to apply the principles of natural justice and procedural fairness, several decisions suggest a proper, unbiased, and thorough investigation is a critical determinant of success in the formal court process. Conversely, those employers who conduct haphazard or otherwise flawed investigations, risk significant liability.
Consider the following cases:
- Calgary (City of) v. Canadian Union of Public Employees, Local 38,[6], in which the Court awarded $125,000 in general damages after finding the employer failed to take timely and proper steps to investigate a sexual harassment complaint.
- Elgert v. Home Hardware Stores Limited[7], in which the dismissed employee was awarded 24 months’ lost income, $200,000 in aggravated damages, and $300,000 in punitive damages, later reduced to $75,000 on appeal. The Court found that Elgert was wrongly accused of sexually harassing two female employees, after Home Hardware’s flawed and biased investigation into the matter. Importantly, the Court of Appeal acknowledged the existence of a legal basis- found in Honda v. Keays-for an aggravated damages award as the flawed investigative process fell under the ‘manner of dismissal.’
- Boucher v. Wal-Mart Canada Corp[8], in which Wal-Mart’s investigators ignored information supporting a harassment and bullying complaint and failed to demonstrate any reasonable degree of diligence in pursuing factual information from witnesses. The plaintiff was awarded $200,000 in aggravated damages; $100,000 in punitive damages; and, her full notice entitlement.
In Elgert, the Alberta Court of Appeal acknowledged that aggravated and/or punitive damages awards are possible following an unfair investigative process. Accordingly, employers should anticipate that Plaintiff counsel will raise these arguments in support of an employee’s wrongful dismissal lawsuit.
While employers should be cognizant of the potential liability involved, the Courts in Canada have been reluctant to hold employers to a standard of perfection when it comes to workplace investigations. The Court may still find in favour of an employer despite a flawed investigation and the reverse is also true. But what is clear is that the Court has a tendency to reward those employers who develop a level of sophistication when it comes to handling employee complaints, including through a prompt, fair and impartial investigation.
In addition, the extent of the legal requirements to investigate depends on the nature of the issue. For example, Courts have typically held employers to a higher standard of investigative process, where there are serious misconduct allegations such as fraud or theft.
Summary
In summary, there is definitely a statutory duty to investigate workplace toxicity such as bullying, harassment (sexual and non-sexual), and human rights concerns. The standard for doing so appears to be the classic ‘reasonableness’ evaluation, meaning the investigation should be fair, reasonably diligent, impartial to a degree, and not itself a source of harassment or bullying.
From a common law standpoint, there does not appear to be a legal requirement to investigate workplace matters generally, as the Courts have not held employers to any rules of natural justice as may be found in other creatures of statute. This is an evolving area, however, and the Courts seem to be getting closer to this reality in their reasoning. That said, it is indisputable that the Courts will penalize employers who make employee decisions without a fair, thorough, and impartial investigation, particularly concerning harassment and bullying complaints, and other serious misconduct allegations. It is recommended that organizations seek out the necessary legal advice and counsel prior to embarking on a workplace investigation.
The above is for informational purposes only, and is not a substitute for a legal opinion.
[1] Wall v. University of Waterloo (1990), 27 CHRR D/44 at para. 160.
[2] McLuckie v. London Drugs, 2009 BCHRT 409.
[3] SOR/2020-130
[4] Supra note 3 at Section 25(1)
[5] Supra note 3 Sections 25(1) to 30(3)
[6] 2013 Canlii 88297
[7] 2011 ABCA 112, aff’g in part 2010 ABQB 43
[8] 2014 ONCA 419