Failure to Investigate – Independently Actionable?

The jurisprudence on the issue of whether a human rights complaint is actionable based solely on the failure to investigate is divided. Perhaps more precisely stated, it is divided in the cases decided by the Ontario Human Rights Tribunal. Such a dichotomy does not appear in Ontario Superior court decisions examining the same issue.

Human Rights Tribunal Decisions

A recent Divisional Court commented on this conflict. This specific issue was not raised in the case before it. ¹ This court did not advocate for either position but rather simply noted the opposing views:

The jurisprudence is divided on whether the failure to investigate a complaint of discrimination constitutes an independent breach of the Human Rights Code. In some cases, the Tribunal has found that a failure to investigate an allegation of discrimination can constitute a violation of the Human Rights Act. Those cases tend to involve allegations of discrimination in an employment context where the employer has a duty to provide a workplace free from discrimination for all its employees: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, Nelson v. Lakehead University, 2008 HRTO 41. However, in Armitage v. Ottawa Carleton District School Board, 2022 HRTO 252  the same principles were applied to the provision of services in the education context. In other cases, the Tribunal has held that a failure to investigate a complaint does not constitute a breach of the Human Rights Code if there is no finding of discrimination: Scaduto v. Insurance Search Bureau, 2014 HRTO 250.

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Ontario Superior Court Decisions

This court has been given the jurisdiction to hear human rights claims when accompanied by a companion action since June of 2008.

In a decision released in December of 2022, the employer was found to have failed to investigate the complaints made by the plaintiff. ³ This led to several conclusions, none of which were appealing to the defendant, beyond the issue of whether such a failure was an independent human rights violation.

Such conduct was first seen, amongst other failures, to support the argument that the plaintiff had been constructively dismissed: ⁴

1. USRL engaged in a series of acts that poisoned the workplace and undermined the employee/employer relationship. These acts include: failing to respond to Mr. Osmani’s repeated complaints about Mr. De-Almeida’s conduct, which USRL knew involved a strike to the testicles as well as verbal abuse; failing to conduct any investigation into and/or discipline of Mr. De-Almeida, failing to separate Mr. Osmani and Mr. De-Almeida for anything more than a short “happenstance” period of time.

2. In addition, when Mr. Osmani fell from the ladder and was injured, USRL crafted a false narrative that sought to place blame on Mr. Osmani for the workplace accident. It also dissuaded him from pursuing a WSIB claim and used Mr. De-Almeida as its intermediary to accomplish this end.

3. Once Mr. Osmani returned to work, he was eventually placed back with Mr. De-Almeida. He was also made to perform duties outside his capabilities and had his WSIB claim prematurely terminated resulting in the loss of his wage top-up.

The same failure to investigate was also used as one factor to support the award of aggravated damages for unfair conduct, set in the amount of $75,000:

USRL took little to no steps to end Mr. De-Almeida’s abusive conduct which lasted over a year. It conducted a wholly insufficient investigation culminating in what can, at its highest, be described as an informal caution. It failed to enforce workplace policies which were designed to protect employees. Following Mr. Osmani’s workplace fall, USRL produced a misleading investigation report and then interfered with Mr. Osmani’s resort to the WSIB. In doing so, it enlisted Mr. De-Almeida as an intermediary. Upon Mr. Osmani’s return, it failed to make efforts to ensure that he was only given tasks that were within his abilities. Lastly, while Mr. Osmani was, by happenstance, separated from Mr. De-Almeida, he was eventually placed back under his supervision. All these factors taken together made the workplace objectively intolerable. USRL treated Mr. Osmani unfairly and caused him significant mental distress and loss of dignity.

These findings were also used to allow for a punitive damage award of $25,000.

On the specific issue of whether there is a free standing actionable duty to investigate, without regard to the merits of the underlying complaint, the Court stated, “in some circumstances”, this may be so:

As such, s. 5 of the Human Rights Code imposes a duty on an employer to conduct an investigation into allegations of workplace harassment, see Murchie v. JBs Mongolian Grill, 2006 HRTO at para. 165 and Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at paras 51-53. A violation of the duty, in some circumstances, gives rise to liability.

In this case, the court did find that the fundamental complaint of human rights violations was upheld. The case hence was not one directly addressing whether the failure to investigate was independently actionable.

That being said, the court did find that the employer failed to complete a proper investigation of the complaint. ⁵ This failure led to the creation of a poisoned workplace and hence then became an independent code violation. The composite award for the human rights violations was set at $50,000:

In this case, I am satisfied that damages of $50,000 are appropriate. Mr. Osmani was a vulnerable employee whose stay in Canada was connected to his employment at USRL. He was subjected to humiliating and degrading conduct by his supervisor. His employer did precious little to investigate and stop the behaviour. The conduct lasted for over one year. The impact of the discrimination and harassment on Mr. Osmani’s mental health was significant and long lasting.

This question was again addressed in a 2024 decision. ⁶ The plaintiff successfully asserted that the employer had committed human rights violations in its manner of treatment. She had been terminated while on a temporary medical leave due to mental health issues, which in turn, had been caused by sexual assaults from tenants in the building where she had been employed. The trial judge addressed the issue of the failing of the employer to address the assault and sexual harassment she had experienced, and to determine whether such conduct was a breach of the Employment Standards Act, the Human Rights Code, the Occupational Health & Safety Act and common law protections.

The court did affirm the fundamental duty to investigate:

 An employer must take reasonable steps to address an employee’s complaints of harassment. The criteria for “reasonable steps” are as follows: (1) Awareness of the discrimination/harassment, applicable policies, company complaint mechanisms and training; (2) The employer’s post-complaint conduct such as seriousness, promptness, investigation and action; and (3) resolution of the complaint, including communication and providing the complainant with a healthy working environment: Laskowska v Marineland of Canada Inc. (2005), [2005] HRTO 30.

The case did not deal with this duty as one creating an independent remedy as there was clear violation of the Code shown on the merits of the underlying complaint. The decision nonetheless points in this direction:

In all of the circumstances of this case, I am satisfied that the plaintiff is entitled to damages for the defendant’s violations of the Acts. I find this to be the case for the following reasons:  the lack of any reasonable response; the lack of any policies in place addressing violence and harassment or put in place as a result of the plaintiff’s complaints and the tenants conduct; the fact that no investigation was done and no safety mechanisms were put in place for the plaintiff following Jamie’s arrest, and one year later following Dwayne’s arrest.

The “Acts” refer to the three statutes cited above. There was no policy put in place as required by the Occupational Health & Safety Act. It is clear that the reasons show the failure to investigate as influencing the damage award made of $125,000. Arguably, such a failure to investigate allowed the harm to continue, which is not directly stated in the above passage. This is seen in the following paragraph:

An employer has a duty to intervene to stop the harassment of its employees in the workplace, including harassment by third parties. This is particularly so when third parties attend the workplace on a regular basis, as in the case of regular service contractors or when third parties reside on the premises, as in this case. The duty to act applies to a single incident of harassment, if serious: see Walmsley v Ed Green Blueprinting, 2010 HRTO 1491. In this case, it is clear that the employer considered the harassment to be serious, as Seale and Singh both told the plaintiff to contact the police if she felt unsafe, and Seale called the police herself as regards Jamie.

This theme of the failure to investigate leading to a continuum of the damages is not unique.

The cases are very much fact driven as the failure of the investigation and extent of the personal damages suffered will drive the incremental awards of aggravated and punitive damages and indeed other tort claims, such as the intentional infliction of mental suffering. ⁷

Sexual harassment cases, in particular, take on a different dimension as the victimized plaintiff may also assert that the failure to conduct a speedy and effective investigation led to a continuum of the damages.

The City of Calgary case also involved a successful plea for past and future lost income, apart from a “general damage” award. The case was unusual as the parties had agreed that all forms of potential relief, human rights, arbitral and common law would be determined collectively by the arbitrator. The finding was made that the failure to investigate promptly added to the plaintiff’s emotional turmoil, which ultimately prevented the complainant from permanently returning to work.

All of the above background is important as the award, apart from $125,000 for what was, in essence, aggravated damages, also allowed for additional sums of lost past income of $125,000, a future income loss of $500,000 and a future pension loss of $65,000. ⁸

This is reflective of the same motivator for prompt steps to investigate a complaint particularly of this nature, in which the offensive conduct may be a continuum.

In the City of Calgary case, the very failure to implement these policies and start an effective investigation “contributed significantly to the ultimate state in which the Griever finds herself”.

This context takes the failure to investigate to a new level of significance. It is not purely a matter of a flawed investigation coming to the incorrect or biased result. Now, the failure to investigate itself has exacerbated the very damage the process was intended to stop.

It may be a slight exaggeration to state that the magnitude of the total award of $800,000 stemmed solely from the failure to investigate promptly and fairly, but is certainly clear that this failure added very much to the damage claim and is a step which could have readily caused the offensive behaviour to have been readily curtailed. As noted, this failure to investigate is distinctive as this became the very cause of heightened distress and suffering.

Each case, however, does pivot on a common lever, namely that the allegations of misconduct are of a grave nature, a flawed investigation has followed and serious harm has been suffered by the innocent party.

Conclusion

No matter the apparent uncertainty of the law in Ontario’s human rights regime, there is no doubt that the law, by the Human Rights Code, the Occupational Health & Safety Act mandate such investigative steps be taken and the failure to do so will result in certain liability.