Under Ontario’s human rights jurisprudence, when an employee raises a complaint of discrimination, the employer has a duty to address that complaint. The employer’s response to a complaint, including the investigation it undertakes, must meet a standard of “reasonableness.”¹

When considering whether an investigation is reasonable, you may readily think of the steps you take to ensure investigations are fair, timely, confidential, and thorough: maintaining an open mind, providing the allegations to the respondent in advance of their interview, and considering all necessary evidence, among others.

A recent decision of the Ontario Human Rights Tribunal, Kenney v. Thames Valley District School Board and James Patrick,² illustrates another, less well-known criterion for conducting a reasonable investigation: the employer must rely on the investigation report in a reasonable way.

Read on to learn why the Tribunal found that the employer in Kenney conducted an investigation that was unreasonable, and three ways to minimize the risk that your investigation reports inadvertently encourage similar employer missteps.

What the employer did

The employer school board received a complaint from W Kenney that his colleague, J Patrick, made discriminatory comments about Kenney’s Indigenous heritage, including that that Kenney treated a tech room “like his own personal reservation.” The employer retained a third-party investigator to investigate Kenney’s allegations.

The investigator provided a written investigation report to the employer. In its decision, the Tribunal states that in the report, the investigator recounted and accepted the principal’s evidence that Patrick made the “personal reservation” remark, and accepted that this remark was a plain reference to Kenney’s Indigenous heritage. However, for reasons not explained in the Tribunal decision, the investigator concluded that Kenney’s discrimination complaint was unsubstantiated.

The employer accepted the investigator’s conclusion that Kenney’s complaint was unsubstantiated, and did not take any remedial or corrective action. Shortly thereafter, the employer transferred both Kenney and Patrick to different schools. Kenney did not want to transfer.

What the Tribunal found

The Tribunal found that Patrick discriminated against Kenney, and that the employer was vicariously liable for that discrimination.

The Tribunal then went on — much to the surprise of the employer, I’m sure! — to find that the employer, by relying on the investigation report, “failed to reasonably investigate [Kenney]’s discrimination complaint.” Specifically, the Tribunal found that the employer’s reliance on the report was unreasonable because the report’s conclusion that Kenney’s complaint was unsubstantiated contradicted its acceptance of the evidence that the discriminatory “personal reservation” remark was made. Unreasonable reliance on the report amounted to failure to reasonably investigate.

The employer’s liability did not end there: the Tribunal went on to find that the employer created a poisoned work environment for Kenney.³ In the Tribunal’s view, the employer’s actions — relying on the investigation report, failing to take any remedial action, and then transferring Kenney against his will after he attempted to enforce his Code rights — conveyed to Kenney that that “his employer did not consider remarks about his Indigenous heritage discriminatory and that if he complained further, he may suffer additional negative consequences.”⁴

Three ways investigators can avoid encouraging employer missteps

Investigators must take care not to allow a desire to ensure their reports are reasonably relied upon to introduce bias into the investigation process; however, investigators can take the following three steps to ensure their reports do not inadvertently encourage employer missteps.⁵

1. 1. Suggest that the employer consult with an expert employment advisor.

I suggest to all my clients that they consult with an expert employment advisor starting from the moment an employee’s complaint is received. Some employers (wrongfully) believe that if they have a complaint investigated by a well-qualified investigator, the investigation report will contain all the information the employer needs to consider when deciding what to do (or not do) next. It may not occur to these employers to consult an employment lawyer or other advisor to help the employer review the report, consider all the relevant factors and risks, and decide what to do.

Click here to read how an expert employment advisor can help an employer both review the investigation report and decide what to do about the information within it.

1. 2. In the investigation report, expressly describe any limitations on your findings and conclusions.

Your ability to make findings of fact will sometimes be impacted by less-than-ideal investigation circumstances that you are not able to overcome. Perhaps a key witness refuses to participate, or certain relevant documents are no longer available. Your report should clearly describe any factors that limit your ability to make factual findings.

Likewise, your report should alert the reader to any constraints on your analysis of whether the respondent’s conduct amounts to discrimination or harassment. Examples of such constraints include discrepancies between the prohibitions in the employer’s policy and those at law, or a lack of settled jurisprudence on an issue that is material to your ultimate conclusion.

1. 3. In the investigation report, explain all seeming inconsistencies between the evidence and your findings of fact, and between your findings of fact and ultimate conclusions.

In your reports, clarity and transparency are especially important for any findings or conclusions that seem counter-intuitive or inconsistent with other findings. Your report should be easy for the reader to follow, in that it should be obvious how you reached all your findings of fact and your ultimate conclusions.

Put your draft report down for a day, and then read it with fresh eyes. Is there any evidence you seem to have ignored or passed over, without explaining why? Do the ultimate conclusions seem in any way at odds with your findings of fact? Edit your report to explicitly explain these discrepancies.

To learn more about how to write clear, well-explained investigation reports, click here to read Janice Rubin’s post, “Our top tips for effective workplace investigation report writing.”

¹ Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII), at paras. 51 to 53.

² 2023 HRTO 1795 (CanLII) [“Kenney”].

³ To learn more about what amounts to a poisoned work environment, click here to read “Dealing with “poisoned workplace” complaints.

⁴ Kenney at para. 48.

⁵ This blog post is not meant to suggest that the investigation report addressing Kenney’s complaint encouraged any missteps, or that the investigator failed to employ the best practices I describe.

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