Workplace investigations can be hard on parties and employers alike, and the challenges don’t end when the investigation is over. At the conclusion of the investigation, decisions need to be made: What consequences (if any) will there be for the respondent? How will the employer remediate the working relationship? Is it even possible to do so?

A question I often get asked as an external investigator when the allegations turn out to be unsubstantiated is: Does this mean that the complaint was frivolous or vexatious, and if so should there be consequences for the complainant? This question is more complex than it may seem. In considering whether a complaint was frivolous or vexatious, it’s important to first understand some of the caselaw surrounding these terms.

What does it mean to be vexatious?

Courts and Tribunals tell us that a complainant is acting in a vexatious manner when they bring one or more actions to determine an issue that has already been decided. Simply put, bringing up the same issues again and again can be considered vexatious. A vexatious proceeding can also be one that no reasonable person could expect to succeed [1], or one that is brought for an improper purpose. An improper purpose could include the harassment of other parties [2], or to drain the employer’s resources [3].

The Human Rights Tribunal of Ontario (HRTO) has acknowledged that declaring a person to be “vexatious” is not only serious but is, in fact, an “extraordinary remedy.” [4] Even if an applicant has raised multiple complaints in the past, the HRTO might not declare the applicant to be vexatious when a significant amount of time has passed since the last application; when the allegations relate to a different respondent; and when the allegations involve distinct facts and incidents of discrimination [5]. Essentially, multiple complaints are insufficient, on their own, to demonstrate that someone is acting in a vexatious manner.

What does it mean to be frivolous?

A frivolous action is one that is “readily recognizable as (being) devoid of merit [6],” and that has basically no prospect of success. A case that seems weak and yet still has some prospect of success would not be considered to be frivolous [7]. In the workplace context, employers need to keep in mind that under the Occupational Health and Safety Act, harassment is defined as a course of comment or conduct, so even minor incidents (that at first glance might appear “frivolous”) can be part of a pattern of behaviour that needs to be investigated.

With respect to frivolous complaints, the HRTO has similarly acknowledged that a complaint should not be labeled “frivolous” lightly, without giving due consideration to all the facts of the case; just because a complaint is ultimately dismissed does not mean that it can be characterized as “frivolous.” [8] The HRTO has said that a frivolous complaint is one that is petty, silly, insignificant, a waste of the Tribunal’s time, and “completely without factual or legal basis” [9]; this is a high bar.

What do employers need to keep in mind?

Most employers are not judges or HRTO adjudicators. However, for any employer who has to decide what is to be done in the aftermath of a workplace investigation, a working knowledge of the legal terms “frivolous” and “vexatious” is important to ensure that the terms are not overused or wrongly applied.

Key takeaways:

1) Have a policy that clearly and specifically defines the terms “frivolous” and “vexatious.” Having the terms defined in your workplace harassment policy ensures that everyone (complainants, respondents, managers and investigators) is on the same page when it comes to differentiating between a frivolous/vexatious complaint and one that is merely unsubstantiated.

2) Do not give in to temptation to overuse these terms. When an employee raises numerous complaints that take up a lot of resources to investigate, it can be tempting to write them off as “vexatious” in an attempt to curb their complaints. Keep in mind that even a difficult employee can have a valid complaint, and that failing to hear them out can lead to bigger problems down the road.

3) Be wary of engaging in reprisal (or the appearance of engaging in reprisal). Under the Occupational Health and Safety Act and most workplace harassment policies, no employee who makes a harassment complaint in good faith can be subjected to reprisal. Labelling complainants as “vexatious” once the investigation is complete – without solid grounds for doing so – can appear to be punishment for making the complaint in the first place. This can have not only dire legal consequences for employers, but can also have a detrimental impact on workplace morale, and a chilling effect on future meritorious complaints.

[1] Re Lang Michener and Fabian, 1987 CanLII 172 (ON SC)

[2]  Foy v Foy 1979 CanLII 1631 (ON CA)

[3] Potocnik v. Thunder Bay (City), [1997] OH.R.B.I.D. No. 18

[4] Hiamey v. Conseil scolaire de district Catholique Centre-Sud, 2012 HRTO 1331 (CanLII)

[5] Macyshyn v. Cheese Boutique Ltd., 2016 HRTO 341 (CanLII)

[6] Pickard v. London Police Services Board, 2010 ONCA 643

[7] R. v. Manasseri, 2013 ONCA 647

[8] Roosma v. Ford Motor Co Ltd., 2001 CanLII 26211 (ON HRT)

[9] supra note 2