An employer is not explicitly required to investigate a discrimination complaint under the Ontario Human Rights Code (the “Code”) and, in 2013, the Ontario Divisional Court concluded there is no freestanding duty to investigate. Since this court case however some adjudicators appointed under the Code continue to order employers who fail to adequately investigate complaints to pay employees damages – whether or not discrimination takes place.
The early human rights cases
As early as 2005, adjudicators appointed under the Code concluded that employers in Ontario have an obligation to take a complaint of discrimination or harassment seriously, respond promptly, investigate and take action where appropriate (see Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30).
A number of Tribunal decisions concluded that employers have a duty to investigate complaints about discrimination. Failure to do so could result in liability even if the behaviour was found not to be discriminatory. For example, in Nelson v. Lakehead University, 2008 HRTO 41, a professor interviewed for a tenure-track position. He did not obtain the position and complained to the Dean of the University that his age was a factor in that decision – contrary to the Code. The Dean took minimal steps following the complaint. The Tribunal determined that age was not a factor in the decision not to hire the professor. However, the Tribunal held that the Dean did not take reasonable steps to investigate the complaint and the University was liable under sections 5 and 9 of the Code.
The 2013 divisional court decision
The duty to investigate and corresponding liability for failing to do so in all situations was rejected by the Divisional Court in Walton Enterprises v. Lombardi, 2013 ONSC 4218. In this case, an employee was terminated following a workplace fight. The employer did not investigate whether the fight was connected to harassment that the employee had experienced. The Court held that “liability for a discriminatory dismissal does not rest on a freestanding duty to investigate.”
Human rights cases after the Walton Enterprise decision
The Walton Enterprise case has been followed by some Tribunal adjudicators. In Scaduto v. Insurance Search Bureau, 2014 HRTO 250, following his termination an employee complained that he had been harassed at work on the basis of sexual orientation and that the decision to terminate his employment was discriminatory. At the Tribunal, he argued that the employer had failed to investigate these post-termination complaints. The Tribunal determined that the harassment did not occur and that the termination was not discriminatory. It then addressed the question of the duty to investigate. Following Walton, it held that “there is no contravention of the Code simply because there was a failure to investigate a complaint of discrimination where there is no finding of discrimination.”
Other Tribunal adjudicators, however, have ignored Walton and awarded damages for the failure to investigate a complaint of discrimination even where that discrimination did not exist. For example, in Sears v. Honda of Canada Mfg., 2014 HRTO 45, the Tribunal held that “the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination.”
In view of the conflicting case law, it is difficult for employers to know whether they are required to investigate discrimination complaints. Until the courts reconcile this conflicting case law, employers who do not investigate discrimination complaints do so at their peril.