The Duty to Investigate Workplace Harassment Exists, Even in the Absence of a Complaint

A common question that workplace investigators are often asked is whether suspected incidents of workplace harassment have to be investigated, even if a complaint has not been filed. The answer, at least in Ontario, is a resounding “yes.” Ontario’s Occupational Health and Safety Act (the “OHSA”) requires an employer to investigate all incidents and complaints of harassment, regardless of the existence of a formal, or even an informal, complaint.

The Ontario Labour Relations Board (the “Board”) confirmed this interpretation of the OHSA back in 2020 in E.S. Fox Limited v A Director under the Occupational Health and Safety Act, 2020 CanLII 75931 (“E.S. Fox”). The Board found that the OHSA contemplates investigations of incidents of harassment, even where a complaint has not been filed since harassment, in and of itself, is grounds for an investigation.