As an employment law firm with expertise in workplace investigations, as well as advising employers on legal compliance with Ontario law, one of the dangerous assumptions we encounter is around workplace investigations and what triggers an employer’s duty to investigate. There seems to be a persistent myth that if an employee does not file a formal complaint, the employer’s legal obligations remain dormant. This could not be more incorrect. Under the Occupational Health and Safety Act (OHSA) and a 2024 landmark ruling from the Ontario Court of Appeal (Metrolinx v. Amalgamated Transit Union, Local 1587), the duty to investigate is not triggered by a formal complaint, rather it is triggered by the employer’s knowledge.
The Legal Reality: “Incidents” vs. “Complaints”
Section 32.0.7 of the OHSA is clear: an employer must ensure that an investigation is conducted into “incidents and complaints” of workplace harassment. It is very important to note the word “incidents”, as the law does not require a formal, signed complaint to start the clock. If an employer becomes aware of an incident, whether that be through a whisper in the breakroom, an anonymous tip, or a supervisor witnessing a heated exchange, they have a statutory obligation to act.
The “Metrolinx” Lesson: Why Silence Isn’t Consent
In the high-profile Metrolinx v. Amalgamated Transit Union decision, demeaning and sexist messages about a female employee were exchanged in a private WhatsApp group. Even though the targeted employee was reluctant to file a formal complaint and did not want to pursue the matter, the Court ruled that the employer still had a duty to investigate.
The Court’s reasoning was twofold:
- Workplace Culture: Harassment affects more than just the target; it poisons the environment for everyone.
- Statutory Duty: The employer’s obligation to maintain a safe workplace overrides an individual’s desire to stay silent.
Red Flags: When the “Informal” Becomes “Official”
As a firm that handles workplace investigations, we often see employers land in hot water because they ignored “soft” signals. Employers will likely have a duty to investigate if they encounter any of the following:
- The “Off-the-Record” Conversation: An employee tells a manager about harassment but asks them to “keep it between us.” Legally, the manager cannot keep this secret.
- Third-Party Reports: A witness reports seeing a colleague being bullied, even if the victim denies it.
- Social Media or Group Chats: Management becomes aware of “private” digital conduct that has seeped into the workplace and affected morale. As seen in the Metrolinx v. Amalgamated Transit Union decision, even private, off-duty messages can be considered part of the workplace if they involve co-workers, are sexist/derogatory, and impact the work environment.
- High Turnover or Poisoned Work Environment: A specific department has a spike in exits or medical leaves, suggesting an underlying “toxic” issue.
The Risks of Staying Silent
Failing to investigate because “no one complained” is no longer a viable defense in Ontario. If employers wait for a formal complaint that never comes, they may face:
- Ministry of Labour Orders: Inspectors can order an independent third-party investigation at the employer’s expense.
- Constructive Dismissal Claims: An employee may resign and bring an action claiming the workplace environment was so toxic that they had no choice but to leave.
- Human Rights Liability: Claims involving allegations of human rights breaches may result in significant monetary awards for “injury to dignity, feelings, and self-respect.”
Greenwood Law specializes in conducting impartial workplace investigations and advising employers on complex OHSA compliance issues. If you’ve become aware of a workplace incident and aren’t sure of your next steps, contact us today. We help employers and organizations navigate these areas with strategic guidance, discretion and a customized approach that reduces liability and the impact on your team.
