Under the Ontario Human Rights Code, an employer may be held liable for its failure to respond to a complaint of a violation of the Code. The theory behind the imposition of this obligation is a statutory attempt to ensure that the rights created by the Code are meaningful.
This issue of the duty to investigate was addressed in 2005 by the Tribunal (Garfield) in Laskowska v Marineland of Canada:
It would make the protection under subsection 5(1) to be a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a ‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment.Conduct required to trigger the duty to investigate
This duty arises once the complainant has made known the allegations of a Code violation. As was stated in Frolov (Renton):
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.
A Reasonable Investigation
The duty of the employer is to conduct a reasonable investigation as opposed to a perfect one. In Laskowska, the Tribunal determined the following tests to assess the conduct of the employer in replying to the internal complaint:
(1)Awareness of issues of discrimination/harassment, Policy Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
(2)Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
(3)Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide him/her with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
The Tribunal in Laskowska continued to state that the employer need not necessarily touch all the bases in every case, although such would be considered the exception. The overall question to be answered is did the employer, given all the circumstances, act reasonably:
While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.
Reasonable Means Fair
It is essential to the investigative process that the employer shows neutrality and lack of bias to both sides of the dispute. As was stated in Murchie v JB Mongolian Grill:
Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code....
It would make the protection under s.5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment.
In Murchie, the Tribunal made certain comments with respect to the identity of the investigator selected by the employer, stating that this person should possess human rights experience and that there be an objective view of neutrality in the process. The Tribunal went so far as to suggest that there be both a female and male investigator, which in this reader’s view, goes to an unnecessary extreme:
[166] The Corporate Respondent was correct to conduct an investigation. However, it ought to have been more careful in its choice of investigator, and in the manner in which the investigation was conducted. I cite with approval a passage from How to Conduct a Workplace Human Rights Investigation,”[1] at page 56:
The Investigator’s Background
It is very important that the investigator understand human rights legislation and the concept of harassment in particular. This will ensure that the investigation is conducted and the questions are asked in a manner that accords with statutory requirements. The investigator should also have experience and sensitivity in dealing with employees and employment issues.
The perception of neutrality and a lack of bias to both the complainant and the alleged harasser are key qualities the investigator must possess. Therefore, the person chosen should not be in a position of influence over these individuals, and should not make decisions regarding their compensation, discipline, demotion, opportunities for advancement, or any other terms or conditions of their employment.
Care should be taken to select an investigator to suit the situation. For example, if the complaint is one of sexual harassment and the allegations warrant it, the employer should consider having both a man and a woman conduct the investigation. This will ensure a gender-balanced investigation. Similarly, if the complaint involves harassment based on race or religion, having a person from a similar background, who can offer insight into the meaning of events and comments, conduct the investigation may be preferable.
The details of flawed investigation in Murchie are described below. The Wall test referenced in the cited passage is set out subsequently.
[168] I find that the Corporate Respondent did deal with the matter promptly and did have awareness that sexual harassment is prohibited conduct. However, it is clear from the evidence that the sexual harassment policy in place was not followed, and that from an objective perspective, the manner in which the investigation took place was not reasonable, for the reasons set out below.
[169] There was no complaint mechanism in place that was functional, and the approach taken to Ms. Murchie’s internal complaint was unsatisfactory. Although Mr. Odd had engaged in prior sexualized antics, they were not sufficiently serious to constitute a poisoned workplace for Ms. Murchie under section 5(2) of the Code. While management did communicate its final determination to Ms. Murchie, it was improper that Mr. Odd was told of the outcome prior to Ms. Murchie, and that he was back at work when she was not, given that they had both been suspended while the investigation took place. The Corporate Respondent has failed to meet more than half of the criteria under the Wall test for reasonableness, contrary to section 5(1) of the Code.
Why the Investigation was Flawed
[170] In this instance, neither Ms. McQueen nor Ms. Conyers had been given any prior human rights training. Moreover, each of them had a friendship with Ms. Murchie, and so neither of them was neutral. Ms. McQueen felt that she had been “bumped off” the investigation, but was nevertheless required to attend the meeting held on Tuesday with Ms. Conyers and Ms. Murchie, and also required to post Mr. Butkus’s message. She was clearly unsure of her role, and it upset Ms. Murchie that her direct report had been removed from the file once she had made her internal complaint and the investigation had started. I agree with Mr. Taylor’s submission that once Ms. McQueen began investigating the matter, it was improper to have removed her. However, she should never have been made an investigator from the outset.
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[171]. I attribute some of these problems to the lack of experience that Ms. McQueen and Ms. Conyers had in human rights, and acknowledge the admission made that this was the Corporate Respondent’s first such investigation. However, throughout the course of the investigation, it was clear that management was losing patience with Ms. Murchie, who was resented for asserting her rights under the Code.
[172] As a result of all of these factors, I find that the investigation was seriously flawed. The manner in which it was conducted itself constituted a breach of the Code under section 5(1). This could have been avoided if the investigation had been conducted by the Corporate Respondent’s Human Resources Department, by outside counsel, or some other neutral third party. I appreciate the evidence given by Ms. Conyers that in light of the “mistakes” made, management has since been given human rights training.
In Nelson v Lakehead the employer was also found to be in violation of its obligation to investigate the complaint fairly. Liability was found on this ground and the substantive complaint, which was based on age discrimination was dismissed. The employer’s response to the complaint was determined to be dismissive and did not show reasonable steps to investigate the complaint:
I have carefully considered the Dean’s conduct in this case and the argument of counsel, but I am not satisfied that the Dean’s response was reasonable in the circumstances. Informing counsel’s argument appears to be a conclusion that there was no credibility to the allegations raised by Professor Cole. While I have reached that conclusion in this proceeding, that conclusion has come after a very lengthy hearing into the allegations. In any event, I have difficulty in accepting that this is a legitimate explanation for the Dean’s response in this case because as the Dean acknowledged, he had “no clue” about some of the allegations made by Professor Cole in her letter of resignation, namely that there had been inquiries made about this candidate’s age as far back as January. While I agree with counsel for the University and the Dean that this allegation was vague, I find its vagueness should have resulted in a different response because the result of ignoring the allegation could have been a hiring tainted by discrimination.
[102] While I appreciate that the Dean sent a response to Professor Cole, the tone of the letter was dismissive of the allegations. Moreover, the Dean’s informal inquiry and comments to staff about the Code did not constitute a reasonable investigation into the allegations. In my view, the Dean should have responded in a neutral fashion to Professor Cole and should have attempted to meet with or otherwise communicate to Professor Cole for the purpose of outlining what options were available to her.
[103] In considering the Dean’s response, I note that he did not follow the University’s own human rights policy and accordingly, I do not accept the argument that the Dean responded in the way he did because of the unique attributes of a university environment. In this respect, in response to a complaint of discrimination raised informally, the University’s policy provides in paragraph 3.3 that a supervisor, staff or faculty member shall maintain confidentiality, “encourage the complainant to talk with the Harassment and Discrimination Officer” and “notify the Officer immediately of the nature of the complaint without naming the complainant and alleged respondent and to consult with the Officer about any necessary action”. The Dean did not comply with any of these steps or take other analogous steps that were responsive to the University’s obligations under the Code.
Training Required for the Investigator
The HRTO considered in Chuvalo v Toronto Police Services (Overend) the quality of the investigation performed with respect to the internal human rights complaint of sexual harassment and determined it to be flawed.
One particular aspect of the finding was that the investigator was performing his first investigation and had received no training for this purpose.
No Need for Independent Evidence
The Tribunal was also troubled by the standard employed by the investigator that the complaint required independent corroboration, an improper mandate:
There were, however, problems with the investigation conducted by Professional Standards. Det. Young, the investigator assigned to investigate all three matters testified that he had not investigated an allegation of sexual harassment and appeared not to have been given any special training in such matters. He concluded that because there had not been any “independent evidence” the applicant’s allegations could not be “substantiated” and recommended that the matter not proceed to a disciplinary proceeding.
[166] This requirement for “independent evidence” ignores the fact that many allegations of discrimination and harassment take place in private and often there is no evidence “independent” of the two parties to the incidents. Even where witnesses are present, there may be compelling reasons for them to not be forthcoming in an investigation.
[167] Moreover, in this investigation, witnesses actually confirmed that the personal respondent had used the word “bimbos,” which was one of the applicant’s allegations. There is no analysis of this in the report on the investigation and it is not clear why Det. Young did not regard this as “independent evidence.”
[168] The issue before me is not whether, at the end of the day, the applicant’s harassment complaint or Supt. Fenton’s reprisal complaint ought to have been forwarded to a disciplinary proceeding, but whether the investigation into those complaints was flawed. I find that the officer who conducted the investigation had little understanding of the issues of harassment as was evident in his failure to recognize critical evidence and his insistence on the need for corroborating evidence. This faulty analytical framework placed an unnecessary burden on the applicant when she attempted to have the Service deal with her complaint of harassment.
[169] The problems with the investigation had further repercussions for the applicant. The failure to refer the complaints against the personal respondent to hearing, and the requirement for corroboration, were raised by the hearing officer deciding the case of insubordination by the applicant. Thus, the failure by the investigator to find her complaints “substantiated” meant that the applicant was effectively precluded from raising her history with the personal respondent as a defence to the insubordination charge against her.
[170] Moreover, as made manifest in the June 10, 2008 letter to her, the investigator’s conclusions formed the basis for the Service’s recommendation that her employment be terminated. As a result of Det. Young’s investigation, management regarded the applicant as having “ongoing attitudinal, conduct and performance issues” as demonstrated by her “unprofessional, disrespectful and insubordinate conduct” towards the personal respondent.
[171] The June 10, 2008 letter specifically refers to the applicant’s internal human rights complaint against the personal respondent and states that the investigator concluded there was “no evidence” to support her allegations. The underlying assumption in this letter is that, having failed to provide the kind of evidence the Service would recognize as “independent,” the applicant’s allegations could be disregarded as mere fabrications. This flawed assumption is a further – and, as discussed below, punitive – extension of the faulty analytical framework used in the investigation.
Apart from liability on the substantive complaint, an award of $8,000 was made for the failure to investigate the complaint fairly.
Prompt Action May Mitigate Damage Claim
The Supreme Court of Canada came to a similar conclusion in its 1987 decision of Robichaud v Canada. The Court stated, obiter, that an employer which responds quickly to a complaint by developing a scheme to remedy and address recurrence of a human rights violation will not be liable to the same extent as one which fails to address such issues.
A parallel conclusion was reached in Payotte v Alarm Guard Services. No investigation was undertaken to determine the validity of the complaint. The reasonableness of the employer’s response, the presence of an anti-harassment policy, and a related investigative process were all seen as relevant to the determination on remedy.
The Wall Test
The test was stated as follows:
There are six elements to the “Wall” test used to assess the reasonableness of the employer’s response, 1 which are summarized as follows:
There is an obligation of promptness in dealing with a harassment complaint.
There is an awareness by the employer that sexual harassment is prohibited conduct.
The issue must be dealt with seriously.
The employer must demonstrate that there is a complaint mechanism in place.
The employer has an obligation to provide a healthy work environment.
There is an obligation for management to communicate its actions to a complainant.
This finding was made of the failure to investigate:
[40] The corporate respondent also failed to investigate at any time after it was served with the underlying complaint filed with the Commission in 2007. In my view, such a failure to reasonably investigate exacerbated and compounded the infringement of the applicant’s right to be free from harassment on the basis of sex and sexual solicitation. Since there is no dispute that Mr. Ameri was an employee, during the relevant time, I am satisfied the corporate respondent is liable for the failure to investigate under section 46.3 of the Code and in the circumstances of this case.
In this case, a separate award was made of $5,000 due to the failure of the corporation to investigate the complaint. As noted elsewhere, this also adversely affected the credibility of the company’s defence.
Immediate Investigation May Reduce Victim’s Harm
The Tribunal in Harriott v National Money Mart, made a similar finding of a failure to properly investigate the complaint of Ms. Harriott. One reason to put into place an immediate investigation is to minimize the harm suffered by the victim, as the Tribunal determined:
[147] It is clear that the responsible District Manager, Ms. O’Neil, was advised on a number of occasions by a number of different people that Mr. Wade’s conduct in the workplace was inappropriate and likely constituted sexual harassment. Despite that, she was either unwilling or unable to initiate an investigation in response to these complaints. The result was that the time frame within which the applicant suffered sexual harassment at the hands of Mr. Wade was elongated beyond what it likely would have been had Ms. O’Neil acted promptly upon receipt of the first or second complaint about Mr. Wade. The law imposes an obligation on employers to promptly investigate sexual harassment for a reason: to minimize the length of time that the victim of the harassment is required to endure the harassment.
[148] I have also found that the company’s investigation in response to the applicant’s harassment complaint was inadequate in a number of respects. It also was more prolonged than it needed to be, and the fact that the company failed to keep the applicant apprised of the status of the investigation or its outcome added to her stress.
A total award was made of $30,000 inclusive of the damages attributed to the failure to investigate of $7,500.
The Tribunal in Barfi-Kwabeno v Knoll agreed with the obligation, questioned the employer’s conduct, but found no violation on the facts before it showing a violation of the obligation to conduct a reasonable investigation:
It is undisputed the applicant made two statements about race in the course of the employer’s investigation of the October 22, 2004 incident. The notes of his interview with Khesh Pershad record that the applicant said, “I will not run a defective product. Knoll does not care if the life of a Black Man is lost”. Ms. Blahitka testified that during a meeting on October 26, the applicant said that he was a black man in the workplace, that his safety was not guaranteed and that he wanted his safety to be guaranteed. She says she replied that the employer did not tolerate discrimination in the workplace and if he had those concerns, the company would deal with them when he returned to work.
[17] The Tribunal has held that there is duty under the Code to take reasonable steps to investigate allegations of discrimination: .....
[18] I must admit to some concern about the employer’s failure to ask Mr. Barfi-Kwabena further questions to ascertain what he meant by these statements. However, viewed in context, I find that these statements did not trigger a duty on the employer to carry out any further investigations. The statements that Knoll did not care about the safety of a black man and would not guarantee the safety of a black man in the workplace must be seen in the context of the dispute between the applicant and Knoll about the safety of the mack wrapper machine. The reasonable interpretation of these assertions, given the events that had taken place, were that Knoll had responded to his safety concerns as it had because of his race. There had been extensive steps taken to deal with those concerns, including a meeting, action plan, and an investigation by the Ministry of Labour. The machine appeared to be safe. There were no further steps that were reasonably necessary to deal with the applicant’s allegations when his safety concerns had been addressed. The analysis of the need to investigate allegations about risks to the “safety of a black man” would be completely different if they did not come in the context of a dispute about the safety of workplace equipment.
[19] I therefore find that there was no violation of the Code through the employer’s failure to conduct further investigation as a result of Mr. Barfi-Kwabena’s statements.