The investigation of any human rights complaint, is, of course, is a prudent course of conduct for many business and humane considerations, legal issues aside. When the issue is first considered by the employer, the company usually has no firm conclusion as to whether the complaint will be pursued by civil tort or contract action, a human rights complaint or by a civil action incorporating human rights relief. ¹

The remedies available ² due to the failure of the company to provide a proper investigation in cases alleging serious conduct may be severe.

Recent civil cases have been generous in the awards of aggravated and punitive damages. ³ Generally the decision to conduct a proper and fair investigation will be a defence to such incremental claims, when the termination of the relationship has been effected in good faith, even though a cause defence has not succeeded.

A prompt and unbiased investigation will hence be in order for multiple reasons, not simply because the human rights process mandates it.

Ontario

The interpretation of the employer’s obligation under the code, upon becoming aware of an alleged violation, is to conduct a reasonable investigation. There is no specific statutory provision mandating such steps. The code has been interpreted to create this obligation to ensure that the rights created by it are meaningful. An additional reason to mandate such a process is to cause the immediate cessation of any offensive behaviour. ⁴ Such a duty makes perfect sense.

To abbreviate the analysis which follows, Ontario is the only jurisdiction which has considered that the failure to investigate may lead to an independent award, regardless of the merits of the underlying complaint. The jurisprudence, is, however, divided.

That being said, a recent Ontario Superior Court decision allowed such an award, on the theory that the failure to investigate created a poisoned work environment. It is referenced below.

Independently Actionable - Ontario

As noted, there is some dispute in the law in Ontario as to whether the failure to do is independently actionable, regardless of the need to prove a Code violation, as is discussed momentarily. ⁵

This 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.

This case then became the hallmark for the establishment of this obligation.

This duty arises once the complainant has made known the allegations of a Code violation. It is not a condition precedent that there be a complaint filed. ⁶The test to show a prudent and fair investigation has been defined to be one not limited to the conduct following the company’s awareness of the complaint, but also prior to it and also the reactive steps taken to resolve the complaint.

It is hence important for the company to put in place policies and procedures to ensure that its employees are aware of the protections afforded by the workplace and the commitments that the company has made to investigate such concerns.

These considerations were examined and set out as follows: ⁷

1. Had the company taken proper steps to put in place a human rights policy and establish a complaint mechanism;
2. Had it given its management proper training to implement it;
3. Were employees made aware of such a policy;
4. Once the complaint was known, did the company treat it seriously, deal with it promptly and sensitively;
5. Did the employer reasonably investigate the complaint;
6. Did the company resolve the complaint fairly, provide a reasonable resolution, provide a proper work environment consistent with the Code and communicate its findings to the worker.

These principles are a summary of what has been referred to as the “Wall” test. ⁸

The overall question to be answered is did the employer, given all the circumstances, act reasonably. In the application of this test, the overall obligation of the employer is not to have acted based on a standard of perfection, but to have acted fairly.

Needless to say, it is essential to the investigative process that the employer shows neutrality and lack of bias to both sides of the dispute.  ⁹ This is a proposition which needs no authority. The investigator must have no inherent prejudice or pre-judgment as to the issue. However, there must be some modicum of reasonableness injected into this process.

In one instance 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. To that issue, there must be agreement. All these factors suggest an external investigator would be most suitable choice, as was indeed recommended by the Tribunal in this instance such as outside counsel or an independent investigator. ¹⁰

However, in the same case the Tribunal went so far as to suggest that there be both a female and male investigator in the case of an allegation of sexual harassment. This goes to an unnecessary extreme. It also expressed the view that in the event of a complaint based on a specific race or religion, the investigator be a person from a similar background to allow for “insight into the meaning of events and comments”. This also goes far beyond a rational purpose and may, if anything, cause an inherent bias, at least an appearance of one.

The Tribunal did find the investigation in Murchie to be severely lacking. The reasons for this conclusion will be instructive of how to plan for and complete a proper investigation in day to day practice. As noted above, it is a three step process, including (1) preventative steps in place such as an effective policy and a complaint mechanism which has been properly communicated to the workforce, followed by (2) a prompt and fair investigation which has resulted in (3) a fair resolution which has been well communicated and any necessary remedial steps taken. It is not simply step 2.

A summary of the failings of the employer in this instance were as follows:

1. The sexual harassment policy was not followed;
2. The complaint mechanism was not functional;
3. It was improper that the offender was told of the result before the complainant and that he had been allowed to return to work before the complainant;
4. The investigators had no human rights training;
5. Each of them were friends of the complainant;
6. One of the investigators was removed in the course of the investigation;
7. The complainant was resented by management for bringing the complaint.

The need for proper training before conducting such an investigation was also noted in Chuvalo v Toronto Police Services (Overend). A flawed investigation was similarly found in this case, one particular aspect being that the investigator was performing his first workplace investigation and had received no training for this purpose.

This again makes perfect sense and reflects concerns which may be readily addressed and corrected.

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, notwithstanding that the substantive complaint of age discrimination was dismissed. The employer’s response to the complaint was determined to be dismissive as it failed to demonstrate that it took reasonable steps to investigate the complaint. Such other deficiencies in the investigative manner included:

1. The Dean used an informal inquiry process;
2. The Dean failed to discuss the issue with the complainant;
3. He failed to follow the school’s human rights policy;

One would expect that the person in charge of the investigation would follow and adhere to the very policy which governed such a circumstance. This case provided a graphic illustration of how not to handle such an investigation.

The HRTO considered in the above case of Chuvalo v Toronto Police Services (Overend) the quality of the investigation performed with respect to the internal human rights complaint of sexual harassment.

The Tribunal was troubled by the standard employed by the investigator that the complaint required independent corroboration, an improper mandate, likely due to his apparent lack of training, referenced above. In addition other factors which pointed to the investigation as flawed included a finding that he had ignored certain probative evidence which was before him.

Apart from liability on the substantive complaint, an award of $8,000 was made for the failure to investigate the complaint fairly.

The Supreme Court of Canada also noted in its 1987 decision of Robichaud v Canada, in 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 failure of the employer to respond to the complaint was found to have exacerbated and compounded the employee’s right to be free form harassment, in this case due to sex and sexual solicitation. An independent award was made for this breach of the duty to investigate of $5,000. As noted elsewhere in the decision, this also adversely affected the credibility of the company’s defence.

This will be an important issue in a failure to investigate claim, namely, that the very failure to take immediate action has contributed to the fate of the victim as the harassment, as in this instance, has persisted.

The Tribunal in Harriott v National Money Mart, made a similar finding of a failure to properly investigate the complaint of Ms. Harriott. As noted, one reason to put into place an immediate investigation is to minimize the harm suffered by the victim. In this case, once again, due the failure of the company to act promptly, the sexual harassment continued unabated. In this instance, further failings in the investigation were found due to the delay in the process and further that the company failed to keep the complainant apprised of the status of the investigation.

A total award was made of $30,000 inclusive of the damages attributed to the failure to investigate of $7,500.

Liability Independent of Underlying Complaint

As noted in several of the cases referenced above, there may be liability found upon the employer, even though a substantive violation of the Code has not been proven. ¹¹.

In Frolov v Mosregion, the male complainant asserted a female was sexually harassing him. The employer did not act upon becoming aware of the complaint, arguing that it was unaware that men could experience sexual harassment. This issue went to the need to impose an objective test as to the standard reasonably expected of the employer. The fact this employer was not aware of its potential liability was of no moment to the issue at hand. Its ignorance of the need to act could not make a viable defence.  ¹² Liability was accordingly found for the independent failure to conduct an investigation.

The failure to conduct a proper investigation was found to have affected the applicant’s personal well-being. The total award for both violations was $7,500.

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 a complaint rests upon the employer.

The case of Sears v. Honda Canada Mfg. ¹³ involved a complaint to the Ontario Human Rights Tribunal by an employee of Honda Canada, who suffered from several vision related issues.

The employee alleged that Honda failed to properly accommodate him, and that he had been the victim of harassment, which harassment had not been appropriately addressed. Specifically, he alleged that a co-worker was harassing him on the basis of disability, referring to him as a “blind dog” and by poking him in the ribs. He asserted that Honda had failed to fully investigate his complaint.

In this case the Tribunal once again confirmed that there is a duty upon an employer to investigate and that a failure to do so can result in liability even where the allegations are ultimately found not to be substantiated. In assessing whether or not Honda met its duty to investigate, the Tribunal applied the certain criteria in determining whether or not Honda had “reasonably and adequately” responded to an alleged incident of discrimination, which in essence was the Wall test as stated above.

The Tibunal ultimately found that Honda had not met its obligation to investigate, and by doing so caused Mr. Sear’s continued stress and showed lack of respect for Mr. Sear’s dignity, feelings and self-respect. As a result, the Tribunal awarded damages for intangible losses of $35,000 to Mr. Sears.  This is the most significant award for such a Code violation to date.

The basis of the liability finding was as follows:

…I find that the corporate respondent did not have an adequate anti-discrimination/harassment policy, and a proper complaint mechanism; that is, one that adequately addressed common circumstances that might arise in cases of discrimination.  The corporate respondent adduced its policies in evidence, but there is no evidence that adequate training was given to management and employees. I find that Mr. Moulding’s investigation of the applicant’s first complaint was inadequate, and did not meet the “reasonableness” standard. It is uncontested that the second complaint was not investigated, and there was no follow-up.

The above case aside, the range of damage awards for a finding of failure to investigate has tended to be modest, in the range of $5,000 to $7,500. ¹⁴ The applicant should be mindful of the need to introduce evidence to show the impact which a failure to investigate had upon him emotionally and any other adverse consequences.

To this end the evidence led in the Honda case above is instructive. The applicant introduced medical evidence as to the impact the workplace conditions had upon him, his need for anti-depressant and anti-anxiety medication and the need for psychiatric counselling. The determination of this award was reflective of this evidence:

On a review of all the evidence, I conclude that the applicant suffered humiliation, hurt feelings, anxiety and loss of self-respect. The corporate respondent’s failure to adequately investigate his complaints obviously led to a lack of confidence and was not compatible with respect for the applicant’s dignity as a human being. While it is difficult to judge how much of the applicant’s humiliation, loss of self-respect and anxiety can be attributed to the corporate respondent’s failure to adequately address his complaints of discrimination, this failure clearly exacerbated his distress.

In the circumstances of this Application, which include a lengthy period of failure to accommodate and medical evidence of related depression and anxiety for which the applicant required treatment, I conclude that an appropriate order for compensation for intangible loss is $35,000.

There are no cases awarding lost income or reinstatement but there is no reason to exclude such claims in the proper context, such as that of a woman who has continued to experience harassment due to the failure of the company to investigate and elects to cease her employment.

A failure to make a proper response was found in Sutton v Jarvis Ryan, but no financial compensation was ordered. The award 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, set out above, yet supported by the case which follows.

A Contrary View

The recent decision of the HRTO in Scaduto v Insurance Search Bureau (Scott) came to the stated conclusion that there was no independent relief available due to a failure to investigate, given a failure to find liability. The Sutton decision was not cited.

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 looked at this issue from a different perspective. The failure to investigate, it reasoned, may contravene the Code when this conduct causes or contributes to discrimination. There may indeed follow a Code violation but not due solely to the fact that the investigation was inadequate. The actionable aspect must show a Code violation which was caused or exacerbated by the failure to investigate, it concluded. Accordingly there must be an underpinning of a substantive breach of the Code.

The authority for this proposition was found in the Divisional Court decision of Walton Enterprizes v Lombardi. There was no preliminary finding of liability for a failure to investigate in that instance.

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 issue was not put squarely before it.

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. At first level the adjudicator found a duty of the employer to investigate a possible connection between Lombardi’s depression and the harassment and fight.

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.

This principle has been followed since the release of this decision. ¹⁵

Even given this apparent new direction in the law, this does not diminish the need for a prompt and reasonable investigation. It remains a mainstay of the human rights process.

Other jurisdictions do not allow for such an independent award, although the need to conduct a proper investigation of the complaint is still evident and may lead to other consequences.

This issue was reviewed in a recent Ontario trial decision. ¹⁶ 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.

B.C.

The B.C. tribunal has also come to the conclusion that the failure to investigate may lead to an award independently of the underlying complaint. This was the decision in a 2024 case. ¹⁷ The reasons set out the expected standard to respond "reasonably and appropriately". The factors to be assessed include whether the investigator has a proper understanding of what is discrimination,  whether the employer has treated the complaint with the required gravity, and acted promptly and whether the resolution, if so, reflected a manner designed to ensure a healthy work environment.

Further, a failure to respond reasonably and appropriately may amount to discrimination, even if the underlying conduct complained about is determined not to be discriminatory: Jamal v. TransLink Security Management and another (No. 2), 2020 BCHRT 146, at para. 106 citing Employee v. The University and another (No. 2), 2020 BCHRT 12 at para. 272. Some factors the Tribunal may consider when assessing an employer's response to complaints of workplace discrimination are: whether the employer and persons charged with addressing discrimination have a proper understanding of discrimination, whether the employer treated the allegations seriously and acted promptly and sensitively, and whether the complaint was resolved in a manner that ensured a healthy work environment: Beharrell v. EVL Nursery, 2018 BCHRT 62 at para. 21 citing Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 at para. 53.

Other Jurisdictions

The Nova Scotia Board of Inquiry in Cromwell v Leon’s clearly concluded that the employer had an obligation to make an appropriate investigation and failed to do so. It, however, did not make an independent damage award due to this finding.

There are no cases offering an independent award for failure to investigate a complaint in other jurisdictions.

This being said, the most recent Ontario Superior Court decision stands for the proposition that the failure to investigate may lead to a poisoned workplace, which is a theme for all jurisdictions.¹⁸ The sum of $50,000 was awarded for the Code violations.

A similar finding was made in an Ontario Tribunal decision in 2020 in which it was found that the failure to investigate led to an independent award. This also contributed to a poisoned workplace.  ¹⁹ The sum of $55,000 was awarded as a composite amount for the two violations of the Code. The decision spoke clearly to accept the proposition that the failure to investigate the complaint was independently actionable. There was no reference to the contrary decisions.