In Ontario, the Human Rights Code (the “Code”) provides protection from harassment on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability.
Before a complaint even comes into a play, employers are legally required to have a workplace harassment policy in place, which sets out what workplace harassment is and how employees can report it.
Under the Occupational Health and Safety Act (the “OHSA”), an employer must conduct an appropriate investigation into incidents or complaints of workplace harassment. This investigation should be undertaken promptly; must be objective; must maintain confidentiality; and should be very thorough. The employer can choose to have the investigation conducted internally (i.e., the investigator is someone from within the company), or it can be done by someone external to the company (e.g., a lawyer). In most cases, it is strongly recommended that the investigation be conducted by a third party in order to eliminate any perception of bias, and particularly in situations where the complaint is in regards to an individual who holds a managerial and/or HR position with the company.
Workplace investigations are often complex and technical, meaning that the individual(s) selected to carry them out require specialized training, skills, and knowledge. Hiring an external investigator who is also a lawyer, could reduce the potential risks of the investigation being scrutinized by a court or tribunal (especially when the allegations are very serious). Further, the investigation report would likely be protected by solicitor-client privilege, which ensures confidentiality.