Ontario employers have a duty to investigate allegations of workplace harassment. This involves preparing a report and communicating the results of the investigation to the worker and alleged harasser. 

Complying with this legal duty can create risks for employers, such as the possibility of a defamation claim by the worker or the alleged harasser. This article explores this issue with reference to the recent decision of the Court of Appeal for Ontario in Safavi-Naini v Rubin Thomlinson LLP.

Employers have a duty to investigate workplace harassment

Workers that have experienced human rights violations have a range of options to seek redress. One thing that needs to take place in the event of an incident or complaint of workplace harassment is a proper investigation. The Ontario Occupational Health and Safety Act (OHSA) places such a duty on employers.

The OHSA defines “workplace harassment” as: 

“engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

Workplace harassment also includes workplace sexual harassment. Please see our earlier article on the situations where the duty to investigate workplace harassment arises.

The workplace harassment investigation involves several stages

Under section 32.0.7 of the OHSA, the employer needs to conduct an ” appropriate investigation in the circumstances.” The legislation also requires the worker and alleged harasser (if the latter is also a worker of the employer) to be informed in writing of the investigation results and any action that has or will be taken. 

As we looked at in a previous article, there is a Code of Practice that employers can follow in order to meet the OHSA investigation requirements. It sets out a number of useful practices that employers can use to ensure a thorough and appropriate investigation, including:

• The investigator needs to keep the investigation confidential and not disclose identifying information unless necessary to conduct the investigation or as required by law. 
• The investigator must prepare a written report summarizing all the relevant information, including the steps taken during the investigation, the complaint, the allegations, the alleged harasser’s response, the evidence of witnesses and the evidence gathered.

University-appointed external investigator to examine workplace harassment complaints

The recent decision of Safavi-Naini v Rubin Thomlinson LLP is an example of what can happen if the complainant disagrees with the findings of a workplace harassment investigation. 

The plaintiff was a medical resident of Northern Ontario School of Medicine (NOSM). She made complaints of workplace harassment and sexual harassment against two of the NOSM faculty members. 

NOSM appointed a law firm investigator to investigate the plaintiff’s complaints. 

The investigator concluded that the alleged harassers had not engaged in workplace harassment

The investigator prepared a report and an executive summary for NOSM. She preferred the evidence given by the alleged harassers, with the summary stating that she had concluded that she did not find that they had behaved in a manner that constituted workplace harassment or sexual harassment and that the plaintiff was not a reliable witness.

The executive summary was not made public but was filed by one of the alleged harassers with the Human Rights Tribunal of Ontario as part of his defence to a claim made by the plaintiff. The plaintiff had previously issued a press release via a publicist, so the allegations were public.

Plaintiff commenced defamation proceedings; defendants sought a dismissal

The plaintiff also started proceedings against the investigator and her firm, claiming that the executive summary was defamatory. 

The defendants sought to dismiss these proceedings under section 137.1 of the Courts of Justice Act, arguing that the proceeding arose from an expression made by the defendants that related to a matter of public interest. Under this section, the court is required to dismiss such a proceeding unless it has substantial merit, the defendant has no valid defence, and the harm likely to be suffered by the plaintiff from the expression is serious enough to outweigh the public interest in protecting the expression. 

The defendants argued that the executive summary related to a matter of public interest, namely an investigation into harassment. 

The expression in the executive summary related to a matter of public interest

The Court of Appeal agreed with the motion judge that the executive summary related to a matter of public interest. It said:

“The subject matter of the Executive Summaries concerns general matters over which the public has substantial interest. The public has significant concern over sexual harassment and workplace harassment and, generally, has an interest in investigations into these issues.”

The Court explained that not every harassment-related expression fell within the scope of public interest, but this expression did because NOSM is an educational institution. Media attention and public safety concerns were arising from the allegations. The Court noted that the plaintiff retained a publicist to generate media coverage to shame the institution.

The executive summary was protected by qualified privilege

The Court of Appeal also agreed with the motion judge’s conclusion that the defence of qualified privilege protected the summary. This was because the defendants had a duty to NOSM to report on the investigation, and NOSM had a corresponding interest or duty to receive it. The Court referred to the OHSA investigation requirements to support this conclusion:

“The [investigator and law firm] were retained to investigate allegations of workplace harassment and to prepare investigation reports for NOSM, as required under s. 32.0.7 of OHSA. Moreover, pursuant to s. 32.0.7(1)(b) of OHSA, NOSM had a legal duty to provide, in writing, the results of the investigation, and any corrective action taken, to the complainant and her alleged harassers.”

Given the motion judge’s finding that the balance favoured protecting the expression, the Court of Appeal agreed with the decision to dismiss the plaintiff’s claim against the investigator and her firm.

Contact Haynes Law Firm in Toronto for Advice on Workplace Harassment Investigations

Haynes Law Firm represents both employees and employers in workplace harassment-related matters. As the above decision shows, employers need to take great care when conducting harassment investigations. We can help your organization comply with the legal requirements. We also assist employees to respond to instances of workplace harassment and effectively enforce their rights. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.