Section 32.07(1)(a) of Ontario’s Occupational Health and Safety Act (OHSA) provides that one of an employer’s duties relating to a workplace harassment complaint is to ensure an investigation occurs that is “appropriate in the circumstances.”  OHSA does not, however, clarify what the phrase “appropriate in the circumstances” means.  In Erin MacKenzie v Orkestra SCS Inc., 2023 CanLII 13891, the Ontario Labour Relations Board (OLRB) provided some clarification regarding the investigator selection process. Employers have significant flexibility at the outset in choosing the investigator.  If a complainant believes the investigator is unsuitable, the OLRB will expect them to participate in the investigation and then point to any “inadequacies which rendered the investigation inappropriate.”  It is only after a complainant  participates in an investigation that the OLRB will consider them justified in filing a complaint about the investigator and requesting that the OLRB appoint a different one. 

Background

The Complaint

In July 2021, the employer gave the complainant six months’ notice that it was terminating her employment. The following month, the complainant made a sexual harassment complaint, after having previously discussed the issues she was having with the CEO in an effort to resolve them.

First Investigator

The employer appointed an investigator to address the complaint (First Investigator).  The complainant complained to the Ministry of Labour (MOL) that the First Investigator was not qualified and had a conflict of interest because: she had a contract to provide human resources services to the employer and therefore she had a financial interest in pleasing the employer; the complainant previously had personal conversations with her regarding her experiences, and this made it inappropriate for her now to investigate the complaint; she reported to the complainant; and the CEO appointed her and continued to talk to her about the case.

The inspector assigned to review this complaint did not issue any orders regarding the First Investigator; however, in his Field Visit Report, the inspector found that based on the information received, the First Investigator could investigate the complaint.  In the meantime, however, the First Investigator was removed (or removed herself) from the file.

Second Investigator

The employer appointed another investigator (Second Investigator).  The complainant had the following concerns about the Second Investigator: the First Investigator and Second Investigator had a working relationship; and the Second Investigator was a second-year lawyer who had no demonstrated experience as a workplace investigator.  

When the Second Investigator contacted the complainant by email, the complainant requested her qualifications to conduct the investigation.  The Second Investigator passed this information on to the CEO who responded to the complainant that it was the employer’s right to choose the investigator.  The CEO directed the complainant to cooperate.  The complainant refused and again asked the Second Investigator for her credentials; the CEO again encouraged the complainant to cooperate.  

The complainant refused to comply with the Second Investigator’s investigation and indicated that she felt threatened by the CEO’s directing her to cooperate.  She asserted it was not his place to do so.  

The Second Investigator sent the complainant an email stating that the complainant’s refusal to participate in the investigation was “without reason,” “a sham and a means to circumvent the investigation process,” and indicating that this would be conveyed to the employer.  The complainant argued that this email demonstrated bias and unprofessionalism.  She attempted to get the MOL inspector who dealt with her concerns about the First Investigator to also consider her concerns about the Second Investigator; however, the inspector told the complainant to raise her concerns about the Second Investigator directly with the OLRB.

The complainant appealed the inspector’s findings with regard to the First Investigator to the OLRB and requested that it order the appointment of an investigator with the necessary training and experience to meet the minimum requirements of OHSA.  The OLRB found, however, that because the complainant refused to cooperate in the investigation, her request was unfounded and/or premature, and she failed to establish a prima facie case for the requested order.

The complainant appealed the inspector’s findings regarding the First Investigator to the OLRB and requested that the OLRB order the appointment of “an investigator who has the necessary training and experience to meet the minimum requirements of the statute.”

OLRB’s Decision

The OLRB noted that while s. 32.07(1)(a) of OHSA provides that one of an employer’s duties relating to workplace harassment is to ensure that an investigation that is “appropriate in the circumstances” occurs, it does not clarify what the phrase “appropriate in the circumstances” means. 

The OLRB then found that OHSA does not require individuals who conduct workplace harassment investigations to have any particular qualifications or mandate the use of third-party investigators.  It noted that such investigations are often conducted by “individuals with a range of experiences and backgrounds, including (but not necessarily requiring) backgrounds in human resources and the law.”  

As well, the OLRB referred to the MOL’s document entitled, “Workplace Violence and Harassment:  Understanding the Law”; while recognizing that it lacks the force of law, the OLRB noted that it specifically acknowledges that no specific qualifications are necessary for an individual to be appointed to conduct a workplace investigation under OHSA, and that it specifically lists lawyers as individuals who could carry out such an investigation.  

In light of this, Vice-Chair McGilvery stated:

…I do not find that [the complainant]’s concerns with the Second Investigator—a lawyer—were justified.  There is nothing in the Act   that supports the conclusion that a lawyer, regardless of her year of call, is incapable of conducting an investigation that is “appropriate in the circumstances,” so as to justify a worker’s decision to pre-emptively refuse to cooperate with the lawyer’s investigation.

The OLRB characterized the complainant’s “personal belief” that a second-year lawyer is incapable of fulfilling the investigator role as “simply her opinion.”  It also stated that if the complainant had participated in the Second Investigator’s investigation and then pointed to “inadequacies which rendered the investigation inappropriate,” she may have been justified in asking the inspector to appoint an investigator.

Upon addressing the complainant’s additional concern that the Second Investigator had a “working relationship” with the First Investigator, the OLRB reasoned “there is no basis to…impugn the Second Investigator based on some nebulous connection between the two.” Again, the OLRB found that the complainant should have let the investigation run its course and file a complaint “if concrete examples of impropriety emerged.”

The OLRB did not find that the Second Investigator’s email exchange with the complainant rendered the Second Investigator incapable of conducting an appropriate investigation, especially because the complainant was, for no justifiable reason, directly challenging her competence to perform her job.

The OLRB also declared that the complainant’s speculation that the Second Investigator may have had a conflict of interest was “a bald allegation,” as supporting material facts were not provided.  Furthermore, because the complainant did not raise this when the Second Investigator was appointed or include this allegation in her original pleadings, it was far too late for her to seek to add this entirely new allegation at this stage.

The OLRB concluded that the complainant’s appeal of the inspector’s findings regarding the First Investigator were moot (the First Investigator had been replaced with the Second Investigator) and that the complainant failed to establish a prima facie case for the requested order.

Bottom Line for Employers

This decision suggests that employers have significant discretion to choose who will investigate complaints of workplace harassment.  The OLRB is reluctant to insert itself into decisions about who will investigate workplace harassment complaints until after the complainant participates in the investigation and then points to concrete examples of why the investigation was inadequate.  It is only once an investigation has been completed that  the OLRB  might consider a complainant’s request that they appoint a different investigator. 

Despite this, employers are cautioned against taking a casual approach to choosing who will investigate a workplace harassment complaint.  Employers should avoid choosing an investigator who is unqualified or who has a conflict of interest.  Investigations into workplace sexual harassment complaints are generally time-consuming and stressful for all concerned and an employer’s choice of an inadequate investigator can expose them to being ordered to participate in a second lengthy and difficult investigation with an investigator of the OLRB’s choosing.