When a workplace harassment complaint surfaces, Ontario employers face immediate legal obligations that extend far beyond simply listening to concerns. Under the Occupational Health and Safety Act (OHSA), employers must ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances. At Greenwood Law, our employment lawyers regularly advise employers through these high-stakes investigations where procedural missteps can create significant legal liability and reputational damage.
Key Takeaway: Employers have statutory obligations to investigate workplace harassment incidents regardless of whether formal complaints are filed. Failing to conduct prompt, thorough, and impartial investigations exposes employers to potential Ministry of Labour orders, Human Rights Tribunal proceedings, and substantial civil liability.
Understanding Your Legal Obligations
Ontario employers navigate a complex intersection of workplace harassment laws. Bills 168 and 132 fundamentally changed workplace health and safety law by treating harassment and violence as occupational hazards requiring the same preventive measures as physical dangers.
Workplace harassment under the OHSA means engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome, including workplace sexual harassment. Workplace sexual harassment includes engaging in vexatious comment or conduct because of sex, sexual orientation, gender identity or gender expression, or making unwelcome sexual solicitations or advances where the person can confer, grant or deny workplace benefits.
Critical distinction: A reasonable action, for example, performance management or constructive feedback, taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment. This means legitimate discussions providing feedback, discipline, and operational decisions, when conducted reasonably, do not constitute harassment even if employees find them unwelcome.
When Must Employers Investigate?
The OHSA requires employers to investigate all incidents and complaints of harassment, regardless of whether there has been a formal or informal complaint. Once harassment is known to the employer, the obligation to investigate is triggered.
Recent Ontario court decisions have reinforced this principle. In Metrolinx v. Amalgamated Transit Union, Local 1587, the Ontario Court of Appeal confirmed that employers have an obligation to address workplace harassment even where the alleged victim neglected to file a formal complaint. The Court found that launching an investigation even in the absence of a formal complaint was compliant with statutory obligations.
Strategic reality for employers: Waiting for a formal written complaint before investigating can itself constitute a breach of your OHSA obligations. When management becomes aware of potential harassment, through any means, the duty to investigate arises. Failing to do so, can create liability and exposure for the employer.
What Makes an Investigation “Appropriate in the Circumstances”?
The OHSA mandates an investigation “appropriate in the circumstances”, deliberately flexible language that requires employers to scale their response to the situation’s nature and severity. Investigations must be carried out in good faith. The legal standard is reasonableness, not perfection.
An investigation appropriate in the circumstances should be undertaken promptly. Reasonable efforts must be made to interview the worker who allegedly was harassed, the alleged harasser(s), and any witnesses. When interviewing, ask specific questions about what the person saw, heard or experienced. Take detailed interview notes, and ensure that relevant documents are collected and reviewed.
Timeline expectations: Investigations must be completed in a timely manner and generally within 90 days or less unless there are extenuating circumstances such as illness or complexity warranting a longer investigation.
Selecting an Investigator
The person conducting the investigation can be internal to the workplace (such as a supervisor, senior manager, or human resources staff) or an independent third party. The investigator must not be the alleged harasser and must not be under the direct control of the alleged harasser.
When external investigators are necessary: If allegations involve senior leadership positions, the employer should refer the investigation to an external investigator to conduct an impartial investigation. From our experience as workplace lawyers, external investigators bring specialized expertise, reduce employer liability for investigation deficiencies, and their reports carry greater weight in subsequent legal proceedings.
The Investigation Process: Essential Steps
The Ministry of Labour’s Code of Practice outlines seven minimum steps that must be completed:
- Ensure confidentiality: The investigator must keep the investigation confidential and not disclose identifying information unless necessary to conduct the investigation.
- Interview the complainant and respondent: Thoroughly interview both the worker who allegedly experienced harassment and the alleged harasser(s).
- Provide opportunity to respond: The alleged harasser must be given opportunity to respond to the specific allegations.
- Interview witnesses: Separately interview any relevant witnesses.
- Collect and review documents: Gather all relevant documentation including emails, text messages, personnel files, and any other evidence.
- Take detailed notes: Maintain comprehensive notes and statements during all interviews.
- Prepare investigation report: Create a written report summarizing investigation steps, allegations, responses, witness evidence, and evidence gathered. The report must set out findings of fact and conclude whether workplace harassment was found.
- Report the findings to the parties: The Complainant and Respondent, and in some cases the participants are entitled to the outcome of the investigation. Participants are not entitled at law to a copy of the report. A simple reporting letter is sufficient.
Disclosure Obligations: What Must You Tell the Parties?
The worker who was allegedly harassed and the alleged harasser (if also a worker of the employer) must be informed in writing of the results of a workplace harassment investigation and of any corrective action that has been taken or will be taken.
Upon completion of an investigation, employers should provide a closure letter that sets out the results of the investigation, the identities of individuals who were found to have engaged in harassment, and the specific corrective measures which will be taken.
What you don’t need to disclose: An employer is not required to provide a fulsome report of the factual findings or outline the specific acts of harassment that were found to have occurred. While the reporting letter should indicate if disciplinary action has been imposed, it does not need to indicate the specific disciplinary penalty.
Critical point: Despite completing an investigation, failure to communicate to the employee the results of the investigation, or the steps chosen in response to those results, can breach obligations under the Human Rights Code.
Confidentiality Requirements
It is important that an employer, as part of the investigation, maintain confidentiality to the extent possible. Information may need to be disclosed to protect workers, to investigate the complaint, to take corrective action, or because it is otherwise required by law.
Only share information about the complaint with people who need to know about it. The person the complaint is against will need to know the particulars to respond. Witnesses will need some information about incidents they are said to have been involved in.
As workplace lawyers, we advise employers that promising absolute confidentiality is a mistake, you cannot guarantee complete confidentiality while conducting a fair investigation.
Common Investigation Pitfalls
- Delayed response: Waiting days or weeks to begin investigating signals that complaints aren’t taken seriously and allows evidence to disappear.
- Inadequate interim measures: Failing to protect complainants during investigation can worsen the situation and create separate liability.
- Predetermined outcomes: Conducting “investigations” designed to reach a particular conclusion rather than seeking truth.
- Poor documentation: Inadequate notes and missing evidence make it impossible to defend the investigation later.
- Ignoring reprisal: Failing to address concerns about retaliation against complainants or witnesses.
Reprisal Protection
Persons who make a complaint, as well as anyone else involved, should not face negative consequences for taking part in the complaint process. Protection under the Human Rights Code from reprisal covers complainants, witnesses, advisors, representatives, investigators, and decision makers.
From our experience as employment lawyers, reprisal claims often carry more legal risk than the underlying harassment allegations.
Ministry of Labour Enforcement
The Ministry of Labour actively enforces workplace harassment provisions. If an occupational health and safety inspector determines that an employer is not equipped to conduct an investigation into allegations of harassment, they can order that the employer hire an independent third-party investigator at the employer’s expense.
Potential consequences of non-compliance:
- Orders requiring specific corrective action
- Monetary penalties
- Director or officer liability
- Public disclosure of violations
Strategic Recommendations for Employers
As workplace defence lawyers who represent employers in investigations and subsequent proceedings, we recommend:
- Early legal involvement: Consult employment counsel before commencing investigations in serious matters. Legal advice is privileged and can protect investigation strategy.
- Document everything: Comprehensive documentation protects employers when investigations are later scrutinized by tribunals, courts, or arbitrators.
- Train investigators: Ensure investigators understand Ontario harassment laws, investigation procedures, and credibility assessment.
- Update policies regularly: Employers must review the workplace harassment program as often as necessary, but at least annually.
- Address systemic issues: Consider whether the complaint reveals any broader issues the organization should address.
Taking Action
Workplace harassment investigations represent high-stakes legal obligations where procedural errors create substantial liability exposure. Whether you’re facing an immediate complaint requiring investigation, need investigation policy development, or require defence against claims of inadequate investigation, experienced employment counsel is essential.
Contact Greenwood Law for a confidential consultation. Our employment lawyers provide strategic guidance through every stage of workplace harassment investigations, from initial complaint assessment through investigation management, corrective action implementation, and defence of subsequent legal proceedings.
Disclaimer
This article provides general information about workplace harassment investigations and does not constitute legal advice. Investigation obligations are fact-specific and depend on particular circumstances. For advice tailored to your specific situation, contact Greenwood Law for a confidential consultation with an experienced employment lawyer.
Sources & References
Legislation
- Occupational Health and Safety Act, RSO 1990, c O.1 – https://www.ontario.ca/laws/statute/90o01
- Ontario Human Rights Code, RSO 1990, c H.19 – https://www.ontario.ca/laws/statute/90h19
- Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009 https://www.ola.org/en/legislative-business/bills/parliament-39/session-1/bill-168
- Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 https://www.ola.org/en/legislative-business/bills/parliament-41/session-1/bill-132
Government Resources
- Ontario Ministry of Labour, Immigration, Training and Skills Development, “Code of Practice to Address Workplace Harassment” (August 2016): https://www.ontario.ca/page/code-practice-address-workplace-harassment
- Ontario Ministry of Labour, Immigration, Training and Skills Development, “Workplace harassment: investigation by the employer” (2025): https://www.ontario.ca/page/workplace-harassment-investigation-employer
Ontario Human Rights Commission
- Ontario Human Rights Commission, “Policy Primer: Guide to developing human rights policies and procedures” (2025): https://www3.ohrc.on.ca/en/policy-primer-guide-developing-human-rights-policies-and-procedures/6-procedures-resolving
Professional Standards
- Human Resources Professionals Association (HRPA), “HRPA Practice Standard: Conducting Workplace Investigations” (2025) https://www.hrpa.ca/
Case Law & Legal Commentary
- Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415
https://www.canlii.org/en/on/onca/doc/2025/2025onca415/2025onca415.html
