Workplace Investigations

Independent Remedy

The issue will arise as to whether the failure to conduct an investigation of a human rights complaint gives rise to an independent violation.

Certain cases in Ontario have made this finding.  Others have found to the contrary. The law today remains conflicted on this subject.

In Frolov v Mosregion, the male asserted a female was sexually harassing him. The employer did not act upon becoming aware of the complaint, its defence apparently being that it was unaware that men could experience sexual harassment. The Tribunal noted:

  In this case, the alleged victim was a man claiming that a woman was sexually harassing or soliciting him.  Mr. Bakouchev failed to act upon the applicant’s initial allegations and his first written complaint.  While the respondent may not have been aware that men can experience sexual harassment or is unaware of the different types of sexual harassment that can exist, this does not eliminate the respondent’s obligation to investigate into the applicant’s allegations.  The Tribunal has held that a respondent’s ignorance about its Code obligations does not excuse the respondent or act as a defence to its Code obligations.  See Torrejon v. 114735 Ontario, 2010 HRTO 934 (CanLII), 2010 HRTO 934 (CanLII).

Liability was accordingly found for the independent failure to conduct an investigation.

Once the applicant brought issues of sexual harassment/solicitation to the attention of the respondent, the respondent had an obligation under the Code to respond reasonably and adequately to the applicant’s complaints.  It failed to do so and thus became liable under the Code for its inadequate response.

The employer’s response to the complaint was “stop complaining”, “be a reasonable man”, “you should be pleased that she pays attention to you”. This conduct was found to be in violation of section 5(1) of the Code and constituted discrimination on the basis of gender.

There was, however, no finding of sexual harassment or solicitation. The award was based on the failure to conduct a proper investigation:

  I have determined that the respondent discriminated against the applicant on the basis of gender (sex) and failed to reasonably investigate into the applicant’s written complaints about the co-worker’s conduct and thus has violated the Code.

[106]      The applicant testified about his experience of victimization.  He testified that he felt that there was nothing he could do to have his concerns addressed and nowhere for him to turn except to file his Application.  The failure of the respondent to investigate into his concerns affected his family relationships, his work, and his work relationships.  This was compounded when the respondent commenced an investigation, not from the perspective of a man alleging harassment by a woman, but a woman alleging harassment by a man.

[107]      Some of the Tribunal’s more recent decisions, in which there were findings of sexual harassment and/or sexual solicitation as well as job loss, as well as a failure to investigate, have awarded monetary compensation over $20,000, in addition to other monetary remedies, for violation of the applicant’s inherent right to be free from discrimination and harassment.  See, for example, Smith, supra, at para. 187 and Harriott, supra, at para. 156.

 

Damage Awards

Unlike other sections of the Ontario Code which do not make the employer vicariously responsible for the conduct of its employees, such as sexual harassment complaints, the responsibility for a failure to investigate complaint rests upon the employer.

The range of damage awards for a finding of failure to investigate tends to be in the range of $5,000 to $7,500.

The monetary compensation in Frolov v Mosregion referenced above was set at $7,500. The reasoning for the award was as follows:

   In the circumstances of this case, and in light of the fact that I am making no findings that sexual harassment and/or solicitation occurred, I find it appropriate to award $7,500 for the violation of the applicant’s inherent right to be free from discrimination and harassment and for the respondent’s failure to reasonably investigate.  In awarding this amount, I have considered the fact that the applicant did not lose his job and was not in a vulnerable position in that the allegations were about his subordinate.  I have also considered that the applicant raised serious issues about the co-worker in writing on three occasions before the respondent started an investigation, which, for the reasons described above, was flawed.

Selinger v McFarland also found the employer in violation of its obligation to investigate the complaint and awarded the sum of $7,000 as damages for this violation.

The decision in Payette v Alarm Guard Services (Dimovski) allowed the sum of $5,000 for failure to investigate the complaint.

A failure to make a proper response was found in Sutton v Jarvis Ryan but no financial compensation was ordered, which appeared to be influenced by a finding of no liability on the substantive complaints, a conclusion which is contrary to the reasoning of prior and subsequent decisions.

A Contrary View

The recent decision of the HRTO in Scaduto v Insurance Search Bureau (Scott) came to the conclusion that there was no independent relief available due to a failure to investigate, given a failure to find liability.

The case arose in the context of a post-termination investigation as the decision maker was unaware that the complainant was homosexual at the time of termination.

The Tribunal saw a need to show liability on the substantive issue:

An employer’s failure to investigate a complaint of discrimination can contravene the Code when it causes or contributes to discrimination in the workplace. The breach of the Code is not the failure to investigate per se, but the failure to provide a workplace free from discrimination, which includes discrimination that is caused or exacerbated by a failure to investigate alleged Code infringements. In my view, there must be a finding of discrimination in order to sustain a violation of the Code. There is no contravention of the Code simply because there was a failure to investigate a complaint of discrimination where there is no finding of discrimination. Put differently, the Code is not contravened by the failure to investigate discrimination that does not exist. This finding is supported by the recent decision of the Divisional Court in Walton Enterprises v. Lombardi, 2013 ONSC 4218 (CanLII) at paras. 51 and 54.

[79]        This case demonstrates the difficulty of finding a breach of the Code solely for the failure to investigate. I have found there was no discrimination in the applicant’s workplace. Therefore, there is no contravention of the Code. It does not make sense to say to the respondent you have contravened the Code because you have failed to investigate the applicant’s complaint, but had you investigated, you would not have found discrimination.

It is not clear as to whether the cited Divisional Court decision of Walton Enterprizes v Lombardi provides concrete support for this conclusion. There was no preliminary finding of liability for a failure to investigate in that instance. The issues under review in Lombardi were as follows:

 The applicants do not challenge the finding of harassment.  However, they argue that the adjudicator reached an unreasonable decision in finding the dismissal was discriminatory.  The applicants argue that the adjudicator failed to apply the proper test to determine whether the dismissal was discriminatory, in that she did not first determine whether Mr. Lombardi established a prima facie case of discrimination. As well, the adjudicator unreasonably found a causal link between the dismissal and the depression in the absence of any supporting medical evidence.  Finally, she unreasonably found that the harassment was a cause of the dismissal that justified an order of compensation.

The issue of whether there was an independent actionable obligation to conduct an investigation was not put squarely before the court. It arose obliquely, not directly.

The main issue in Lombardi was the evidentiary connection, if any, between the complainant’s depression and a physical altercation in which he was involved.  It was in this context that the appellate decision considered the duty to investigate, not in the context of the review of such a finding. The Court did not affirmatively conclude that there could be no award made for a finding of failure to investigate, independent of a finding of liability on the substantive issue. The Divisional Court determined that there could not be a finding of liability on the substantive issue because there was a failure to investigate, presuming such a duty existed.

The Divisional Court did state, nonetheless, that there was no basis for a finding of a duty to investigate, absent a liability finding in the substantive complaint:

 The adjudicator also held that the Employer had a duty to inquire into the possibility of a link between Mr. Lombardi’s depression and the harassment and the fight before dismissing Mr. Lombardi.  Again, the reasoning is difficult to follow.  This finding is made in a section of the reasons dealing with corporate responsibility and the application of s. 46.3(1) of the Code, a provision deeming the acts of corporate officials to be the acts of the corporation in certain circumstances. It is difficult to understand why the adjudicator needed to consider this provision in relation to the dismissal, which was clearly an act of the corporate respondent carried out by Mr. Walton, its directing mind.

[51]      In any event, the adjudicator failed to show the basis for finding a duty to investigate before dismissal absent first finding a prima facie case of discrimination arising from the dismissal.

[52]      This is not a case like Krieger, above, where a disability was proven and a clear link established between the dismissal and that disability.  This triggered a duty to accommodate under the Code.  Here, the evidence does not establish any such link between the depression and the dismissal. As there was no link to disability and no prima facie case of discrimination shown, the Employer did not have a duty to accommodate a disability, as in Krieger.

[53]      Moreover, Mr. Lombardi had the primary obligation to ensure that the Employer had sufficient information to trigger its duty to investigate whether he required accommodation.  Mr. Lombardi had never sought accommodation, and the medical evidence suggests no need for any accommodation, since his depression appeared to be controlled with medication.  The present case stands in contrast to the Tribunal’s statement in Simpson-Bolwyn v. Commissionaires (Great Lakes), 2009 HRTO 1362 (CanLII) of the “well-established principle that accommodation is a collaborative process and that the applicant should endeavor to provide as much information as possible” (at para. 35).

[54]      But even if there were a duty to investigate before the dismissal, the adjudicator again fails to explain why the Employer is liable.  She states that had the Employer undertaken an investigation, it “might have concluded that neither the applicant’s depression nor the harassment were sufficiently linked to the fight.”  With respect, she was required to determine whether the evidence showed such a link, as liability for a discriminatory dismissal does not rest on a freestanding duty to investigate.

Divided Jurisprudence

A further decision from the Ontario Tribunal in 2017 also came to the conclusion that the failure to investigate was independently actionable: 1

I agree with the statement made in the Scaduto decision that, in order to find a violation of the Code, there must be a basis to support a finding of a violation of one of the rights protected under Part I of the Code. I disagree, however, that a respondent’s failure to appropriately address or investigate a complaint of discrimination or harassment cannot, in and of itself, constitute a violation of a Part I right, even if the underlying discrimination or harassment is subsequently found to be unproven.

Ontario Superior Court

This issue was reviewed in a recent Ontario trial decision. 2 The employer was found to have failed to investigate the complaints made by the employer, which it was determined, created a poisoned workplace, entitling the plaintiff to compensatory damages of $50,000:

Based on these findings, I am readily satisfied that USRL failed to conduct an appropriate investigation into the allegations involving Mr. De-Almeida and Mr. Osmani. This failure was prolonged and created a poisoned and unsafe work environment. This failure in the circumstances amounts to discrimination under s. 5(1) of the Human Rights Code.