Under Ontario’s Occupational Health and Safety Act (OHSA), employers are specifically mandated to establish a program that outlines how incidents or complaints of workplace harassment will be investigated and addressed. As such, every time an employer receives a workplace harassment complaint that is reasonable in the circumstances, they must investigate the harassment complaint.
Failure to properly investigate workplace harassment complaints, even from employees who have filed similar past harassment complaints, can be costly for the employer. The OHSA sets out fines of up to $2,000,000 for a corporation and an employee can seek their own damages in court. The case of Toronto Metropolitan University v Toronto Metropolitan Faculty Association (2023 CanLII 22957) stands as a warning to employers to investigate all complaints of workplace harassment.
Toronto Metropolitan University v Toronto Metropolitan Faculty Association, 2023 CanLII 22957
In Toronto Metropolitan University v Toronto Metropolitan Faculty Association, the grievor (who was not named) is a tenured professor at Toronto Metropolitan University (TMU) who made multiple claims of harassment against a respondent TMU professor (who was also not named).
The allegations of workplace harassment went back a number of years. Starting in 2011, the relationship between the two professors became strained. The grievor tried to address the matter personally at first, but the respondent’s behaviour of taunting just got worst.
In 2013, the grievor raised concerns about the impacts of the toxic and unsafe work environment had on her health to the Dean at the time. An internal investigation was conducted which the Dean concluded that there was no uncivil conduct that occurred.
In 2015, the grievor contacted security of TMU, about the respondent’s conduct. The Violence Risk Management Office (VRMO) examined the alleged conduct, interviewing both the respondent and the complainant, and determined that the risk of workplace violence was low as no specific threats were ever made.
In May of 2015, the grievor filed a formal complaint against the respondent for harassment and incivility. A few weeks later the respondent filed a complaint against the grievor also for harassment and incivility. TMU decided to retain an external investigator to address these complaints. The external investigator met with the relevant parties and witnesses to the events. In January 2017, the external investigator’s report is completed, finding that some of the grievor’s harassment complainants are substantiated. The respondent is given a letter informing him of the finding and that his behaviour needs to change if he wants to continue to be involved with TMU. However, the grievor did not get the results of this investigation until September of 2017.
In April of 2017, the grievor raises concerns about continued harassment from the respondent, new online harassment, and allegations that the respondent is stocking her. The VRMO produces another Violence Risk Report regarding the respondent and concludes the risk posed by him is low. The grievor found this investigation to be lacking for her workplace harassment complaint and filed her first grievance in September of 2017.
In 2018, the grievor reports vandalism of project posters and suggests that the respondent may be behind it. She later reports that her positive space sticker is removed from her office door. The grievor met with management multiple times to address her outstanding concerns of harassment and no investigation is initiated. The grievor filed the second grievance in October 2018.
Findings of the arbitrator
The sole arbitrator upheld the grievances finding that TMU should have reported the results of the external investigation in a timely manner, should have conducted a workplace investigation into the alleged harassment that occurred between April and May 2017, and conducted a workplace investigation of the alleged harassment between March to June 2018.
The arbitrator noted that failures to comply with the investigative obligations under the OHSA and Ontario’s Human Rights Code (Code) are deemed to be violations of such Acts. The tribunal noted that the initial external investigation was an appropriate one in the circumstances. However, waiting several months to inform the grievor about the results of the investigation is an unnecessary delay, especially since the respondent got the letter informing him of the results of the investigation just a month after the final report was delivered.
In specific regard to the 2017 grievance, the arbitrator held that, even though the 2017 allegations were similar to those in nature to the investigation done by an external investigator, it should not have resulted in the conclusion that a further investigation is unnecessary. In fact, since the external investigation report concluded that here was some harassment, TMU should have been aware of the possibility of further harassment. The wording of the OHSA was deemed to be relevant, as it stands that employers need to investigate when it is “appropriate in the circumstances.” In other words, if the allegations, if accepted as true, would amount to harassment, then an investigation is required.
In specific regards to the 2018 grievance, the arbitrator’s findings were similar to the conclusion of the 2017 grievance. The arbitrator found that just because the 2018 allegations are similar to the 2017 allegations and the allegations made in the external investigation does not support the conclusion that a further investigation is unnecessary. As there was a finding of harassment in the past, TMU’s obligation to investigate subsequent allegations of harassment by the same respondent were in fact enhanced. Given that no harassment investigation was launched, the arbitrator found that TMU was in violation of the OHSA.
How Suzanne Desrosiers Professional Corporation can help
At Suzanne Desrosiers Professional Corporation we have employment lawyers who know the law and have experience doing workplace investigations. If your organization is in receipt of an allegation of harassment, even if similar allegations have been made in the past, it could be essential that you retain our investigation services to avoid falling afoul of the OHSA. To speak to one of our employment lawyers about doing a workplace investigation, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.