Key Takeaways
- Receiving the investigation report is not the finish line. For Ontario employers, it’s the beginning of a new set of legal obligations that carry their own risks.
- Under the OHSA, employers must inform both the complainant and the respondent in writing of the investigation results and any corrective action taken. A vague summary is not enough.
- The HRTO has found employers liable not for failing to investigate, but for failing to act reasonably on what the investigation revealed, including cases where the employer accepted a report’s conclusion without scrutinizing it.
- Reprisal protection continues after the investigation closes. Post-investigation actions like transfers, schedule changes, or disciplinary decisions will be examined closely if a retaliation claim follows.
There’s a moment in every workplace investigation, right after the final report lands on the employer’s desk, where people tend to exhale. The hard part, they assume, is over. The complaint has been taken seriously, an investigator was retained, interviews were conducted, and now there’s a document with findings and conclusions. Time to file it and move on.
That instinct is understandable. It’s also wrong.
In Ontario, the investigation report is not the end of the process, it’s the start of a new phase that carries its own set of legal obligations and, frankly, its own set of traps. How an employer responds to the report, what it communicates, to whom, and what corrective action it takes (or doesn’t) can generate more legal exposure than the underlying complaint. We see this play out repeatedly in our practice, and it’s an area where even well-intentioned employers make costly mistakes.
How to Close the Loop
Under section 32.0.7 of the Occupational Health and Safety Act (OHSA), Ontario employers must provide a written summary of the investigation results and any corrective action to both the complainant and the respondent. This is not discretionary. It’s a statutory requirement.
But here’s where employers run into trouble: what counts as a sufficient written summary? The HRTO addressed this head-on in Bidwai v. Ontario Teachers’ Pension Plan Board, 2024 HRTO 1092. In that case, the employer actually conducted an investigation and took some corrective steps. What it failed to do was communicate those results back to the complainant. The Tribunal found that this omission alone breached the employer’s obligations under the Ontario Human Rights Code. Investigating the complaint was not enough. The employer had to close the loop.
And a vague closure letter that simply says “your complaint has been addressed” likely won’t cut it either. The communication should, at minimum:
- Confirm that an investigation was conducted and is now complete.
- Identify which specific allegations were substantiated and which were not, to the extent possible without breaching the confidentiality of other participants.
- Outline what corrective measures will be implemented.
- Affirm that the employer takes its obligations seriously and that retaliation will not be tolerated.
This is a balancing act. You owe the complainant meaningful information about the outcome. You owe the respondent fairness in how discipline is communicated. And you owe all witnesses and participants the confidentiality you promised them during the investigation. Getting that balance wrong in any direction creates risk.
Review the Report, Implement Recommendations
One of the less intuitive risks in this area is that an employer can be found to have conducted an unreasonable investigation not because the investigation itself was flawed, but because the employer relied on the report without thinking critically about what it said.
The HRTO made this point forcefully in Kenney v. Thames Valley District School Board, 2023 HRTO 1795. An employee filed a complaint that a colleague had made discriminatory remarks about his Indigenous heritage. The employer hired a third-party investigator. The investigator’s report accepted evidence that the discriminatory remark was made, but then, inexplicably, concluded that the complaint was unsubstantiated. The employer accepted that conclusion at face value, took no corrective action, and then transferred the complainant to a different school.
The Tribunal didn’t mince words. It found the employer’s reliance on the report was unreasonable because the report’s conclusion directly contradicted its own factual findings. Worse, the employer’s response, accepting the contradictory report, doing nothing about the discriminatory conduct, then transferring the complainant, created a poisoned work environment. The message to the employee, as the Tribunal saw it, was that his employer did not consider remarks about his Indigenous heritage to be discriminatory, and that complaining further might bring more consequences.
The lesson for employers is uncomfortable but important: you cannot outsource your judgment to the investigator. The report is a tool. It’s your job to read it critically, identify any gaps or inconsistencies between the evidence and the conclusions, and make an independent decision about what the findings mean for your organization. If something in the report doesn’t add up, you need to press on it, not paper over it.
What about Corrective Action
Most investigation reports don’t include recommendations about discipline, and they shouldn’t. The investigator’s role is to make findings of fact and determine whether a policy or legal standard was breached. What to do about those findings is the employer’s decision, and it requires weighing factors the investigator may not have access to: the respondent’s employment history, the severity of the conduct, the impact on the workplace, any relevant collective agreement provisions, and the organization’s past practices in comparable situations.
The range of options is broad, coaching, training, a formal warning, suspension, reassignment, termination, but the response needs to be proportionate to the findings and consistent with how the employer has handled similar situations before. Disproportionate responses in either direction are problematic. Under-responding signals that the employer doesn’t take the conduct seriously. Over-responding, particularly where the findings are contested or ambiguous, can trigger wrongful dismissal claims or grievances.
This is exactly the stage where legal advice is most valuable, and, ironically, where employers are least likely to seek it. They’ve already spent money on an investigator. They have a report. They feel they have what they need. But determining the appropriate response to investigation findings involves legal judgment that goes well beyond what the report contains. It requires understanding the interplay between the OHSA, the Human Rights Code, the employment contract, common law obligations, and, in unionized workplaces, the collective agreement.
Retaliation, Reprisal or Revenge? Be on the Look Out
Reprisal is one of the most legally dangerous post-investigation pitfalls, and it doesn’t require malice. Section 50 of the OHSA prohibits employers from penalizing employees for raising a workplace health or safety concern, reporting harassment, or participating in an investigation. The Human Rights Code contains similar protections. Critically, a retaliation claim can succeed even if the underlying complaint was not substantiated.
What makes this area treacherous is that retaliation can be subtle, and sometimes unintentional. A schedule change that happens to disadvantage the complainant. A reduction in responsibilities framed as “restructuring.” A transfer presented as a fresh start. Even a shift in how a manager communicates with the complainant after the investigation can, in context, support a reprisal allegation.
The Kenney case is instructive here too. The employer’s decision to transfer the complainant after his complaint was dismissed was treated by the Tribunal as part of a pattern that created a poisoned work environment. The transfer may have seemed operationally neutral. In context, it wasn’t.
Employers should actively monitor the workplace after an investigation concludes. Check in with the complainant. Document any operational changes and the business rationale behind them. Make it clear to managers and supervisors that any adverse action toward participants will be treated seriously. And when in doubt about whether a proposed action could be perceived as retaliatory, get legal advice before you act.
Is Restoration Possible?
Investigations are disruptive. Even when they’re conducted fairly and the findings are accepted, the process often leaves behind damaged relationships, heightened anxiety, and a workplace that feels different than it did before. Employers who treat the post-investigation phase as purely a compliance exercise, communicate results, impose discipline, close the file, miss the fact that the workplace itself may need repair.
This doesn’t have to mean a formal workplace restoration program, though in complex cases that’s worth considering. At minimum, it means paying attention to dynamics between the parties, being available to address concerns as they arise, and recognizing that trust doesn’t rebuild itself. A follow-up conversation two or three months after the investigation closes can be more valuable than the outcome letter.
Why Choose Greenwood Law
The post-investigation phase sits at the intersection of everything our firm does. Greenwood Law advise employers on how to respond to investigation findings. We defend respondents when corrective action is challenged. We conduct investigations ourselves and understand the limitations and strengths of a report from the inside. And we help organizations rebuild after a difficult process through workplace restoration.
If your organization has received an investigation report and needs guidance on next steps, communicating results, determining appropriate corrective action, managing retaliation risk, or restoring your workplace, contact Greenwood Law for a consultation.
