Workplace investigations: what the law actually requires

In Ontario, British Columbia, and other jurisdictions across the country, a workplace investigation is a legal obligation, not just good HR practice. When complaints of bullying, harassment, discrimination, or workplace violence come in, an employer must respond – and that response is often scrutinized, whether by a body such as Workplace Safety and Insurance Board, WorkSafeBC, the provincial human rights tribunal or commission, an arbitrator, or a court.

A flawed investigation can create more liability than the conduct it was meant to address. This article sets out the core legal obligations that HR (and other) managers and supervisors should keep in mind, from the moment a complaint comes up in conversation to the point when there is resolution of the matter.

The duty to investigate

The obligation to investigate starts with the requirements of the occupational health and safety (OHS) legislation in the province. For example, in B.C., section 21 of the Workers Compensation Act requires employers to ensure the health and safety of their workers. Bullying and harassment policies established by WorkSafeBC under that section then flesh out what an employer’s obligations and reasonable steps will look like. For example, employers must:

• Have a written policy and a procedure for reporting complaints.
• Investigate complaints promptly, fairly and confidentially.
• Define who investigates and the scope of the investigation (and should contain an alternative person in case the first named person is the alleged perpetrator).
• Keep records of the investigation.
• Train workers and review the policy every year (and provide more training if significant updates are made).

These requirements arise in the context of OHS in B.C., and each jurisdiction will have its own nuanced requirements in terms of the duty to investigate.

In addition to OHS obligations, discrimination adds further consideration. Where a complaint involves a “protected ground” or a defined characteristic for which discrimination is prohibited such as sex, race, disability, religion, or sexual orientation, an employer that fails to respond reasonably can be held responsible for the discrimination itself.

Doing nothing is almost never a safe option.

A fair process

Regulators and courts focus less on whether the investigator reached the "right" answer and more on whether the process was reasonable. A fair process has a few core features:

• Disclosure and notice. The respondent should know the allegations in enough detail to answer them. Surprise interviews and vague summaries can invite challenges.
• A real chance to respond. This includes a fair opportunity to answer the allegations but also the chance to respond to new evidence that comes up and may lead to a finding.
• An impartial investigator. Investigations do not all need to be dealt with by a third-party investigator. However, it may be preferred for several reasons. No one named in the complaint or who may be in a position of actual or perceived bias should investigate. Where HR is close to the events themselves, an external investigator is often the better choice. Furthermore, depending on the issues involved, a staff member may not have the expertise or experience to navigate the process. 
• Timeliness. Delay erodes memories, prolongs harm and can itself breach the duty to act with reasonable promptness.
• Reasoned findings. Each conclusion should be tied to the evidence on a balance of probabilities, with credibility assessments explained.

Despite all of these requirements, perfection is not the standard!

As highlighted by Arora v. ICICI Bank of Canada, 2024 ONSC 4115, flaws in an investigation go to the weight of its findings and do not automatically invalidate them. However, the more an investigation goes off-track from the basic requirements, the less weight it will carry in the eyes of the law.

The cost of a bad-faith investigation

Employers owe employees a duty of good faith in the manner of dismissal as confirmed by the Supreme Court of Canada in Wallace v. United Grain Growers, 1997 CanLII 332 and more recently Honda Canada Inc. v. Keays, 2008 SCC 39. An investigation that is one-sided, predetermined, or used as a pretext with a predetermined outcome can expose the employer to additional damages in addition to damages for notice.

Unsupported misconduct allegations carry their own risk. For example, in Ruston v. Keddco Mfg. (2011) Ltd., 2019 ONCA 125, the employer alleged grounds for just cause none of which it could prove and it also used a counterclaim to pressure the employee. In response, the court awarded the employee $100,000 in punitive damages, $25,000 in aggravated damages, plus costs of nearly $550,000.

If cause rests on an investigation, that investigation needs to hold up.

Confidentiality, privacy and privilege

Confidentiality protects participants and the integrity of the evidence, but it is not absolute.

It is important to inform witnesses what will be kept confidential and what may need to be shared, for example if details need to be put to the respondent so they can have a fair opportunity to respond.

Privacy law also applies. While legislation varies depending on the jurisdiction and whether the employer is private or public, individuals generally have a right to request their own personal information, which can include interview notes and reports, subject to certain exceptions.

Therefore, write every note on the assumption that it might be reviewed by a tribunal, court or arbitrator.

Acting on the findings

An investigation that simply documents misconduct without action fails to discharge the employer’s duty (and could actually result in further liability down the road).

Once findings are made, the employer should:

• Take corrective action that is proportional to findings, whether discipline, training, coaching or changes to reporting lines, etc. (and which accords with the organization’s disciplinary policy).
• Tell the complainant and the respondent the outcome, with the details to remain confidential.
• Watch for retaliation or reprisal against anyone who complained or gave evidence.
• Keep a record of what was done and why.

The common thread here is reasonableness, fairness, and defensibility! If a decision maker, adjudicator or court later reviews the file, it should show a prompt, impartial and reasoned process.

People managers who build that record from the first day of a complaint protect both the people involved and the organization.

Richard B. Johnson is a co-founder and partner at Ascent Employment Law in Vancouver.