Employer’s duty to investigate under the “Code”

August 1, 2019 Kevin Sambrano, Sambrano Legal Services HR Policies and Procedures, Human Resources, Human Rights, 0

Nelson v. Lakehead University is a noteworthy decision from the Human Rights Tribunal of Ontario as it articulates the complexity of any human rights matter before the Tribunal, and further underscores the employer’s duty to investigate.

The matter

The applicant, who worked for a university, applied for a job within the university but was not selected. The Human Rights Tribunal of Ontario heard the complaint that was based on a number of grounds including age.

The hearing took place over 16 days. Although the respondents were found not to have breached the “Code” in regard to discrimination, their failure to investigate allegations of discrimination caused at least part of the application to be successful.

The Tribunal indicated in its decision:

[92] The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Code are meaningful. As stated in Laskowska v. Marineland of Canada Ltd. (2005), 53 C.H.R.R. D/262 at para. 53: 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.[i]

In regard to the complaint, the respondents did in fact respond to the complaint, but seemed to fall short of any meaningful investigation which was what was required by the “Code”.

The analysis

Did the respondents act reasonably in their response to the allegations of discrimination? The Tribunal stated:

“In reaching these conclusions about the adequacy of the Dean’s response, I am not suggesting that the Dean intended to violate the Code. However, intention is not relevant to a finding of a breach of the Code and the Dean’s response, while perhaps well intentioned, fell short of being a reasonable response to the allegations of discrimination…as such his actions constitute a violation of the Code.”[ii]

While the respondents seemed to have based their decision that no discrimination existed, this seemed to be done in a summary fashion. Further, it appeared that the respondents did not follow their own human rights policy, specifically in regard to the complaint process, also citing inadequate training of a least one staff member. [iii]

The decision

Although the majority of the allegations were dismissed by the Tribunal, the respondents were nonetheless found to have breached their duty to investigate.

The takeaway

As per tribunal jurisprudence, reasonable steps must be taken to address allegations of discrimination. Investigations can range from what may arguably be the most credible kind of investigation, such as the contracting of a third-party to conduct an investigation, or an internal investigation that seeks to review the complaint, and examine additional facts, and the interviewing of key persons or evidence.

[i] Nelson v. Lakehead University

[ii] Ibid., para.105

[iii] Ibid., para. 106

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more