In a decision issued earlier this year, the Human Rights Tribunal of Ontario stated that an employer has no duty to investigate a human rights complaint unless discrimination is found to exist [Scaduto v. Insurance Search Bureau]. This decision seems to be in line with an earlier court case where the court concluded that liability for discrimination cannot rest on a “freestanding duty to investigate [Walton Entreprises v. Lombardi ].
If there has been discrimination then a duty to investigate does arise. In this regard, an adjudicator under the Ontario Human Rights Code concluded that Section 5 of the Code would not be effective if the employer could sit by and not investigate a complaint. The employer has a duty to ensure they are operating a discrimination-free work environment. One of the ways in which they can do this is by investigating complaints [Laskowska v. Marineland]. Accordingly, the duty to investigate is basically a means to an end. The Tribunal will award damages for failure to adequately investigate a discrimination complaint if discrimination is found to exist.
In Scaduto, the most recent case, the adjudicator did not find that there was any discrimination. In addition, the employee did not make a complaint until after the employer had decided to terminate his employment. As such, she found that the failure to properly investigate did not contribute to the discrimination. Basically since an investigation would have found that there was no discrimination, it did not make sense to punish the employer for failing to investigate. The rationale behind this seems to be sound. Section 5 of the Code is meant to ensure that an employee is working in a workplace free from harassment because of prohibitive grounds, however section 5 of the Code does not require an employer to investigate every complaint. The purpose of the investigation is to ensure that the workplace is free from discrimination. We believe however an employer should take every complaint seriously and investigate it.
- An employer has a duty to ensure that the workplace is free from discrimination. If discrimination is found to have taken place then the Tribunal will order an employer to pay damages for failing to adequately investigate a complaint.
- Based on Scaduto and Walton, it seems that the HRTO is not likely to find a breach of the Code where there is a failure to investigate a discrimination complaint when no discrimination is found.
- The age old saying “better safe than sorry” applies here. Unless an employer can be absolutely certain that there is no discrimination, we believe the employer should as a general rule investigate all discrimination complaints. Even in Scaduto, the vice-chair warned that failure to do so is at the employer’s peril.
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