CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
• if there is a high likelihood of a legal challenge or proceedings; and/or • as a result of time constraints and internal resourc - es (ie, the organisation neither has an internal workplace investigator available or at all). 1.5 Obligation to Carry Out an HR Internal Investigation For provincially and federally regulated employers, many of the provinces have case law that obligates employers to investigate harassment or discrimination complaints under the applicable human rights legisla - tion. Under certain occupational health and safety legisla - tion, many provincially regulated employers also have a legal obligation to investigate allegations of harass - ment or violence, but the nature of the obligation may differ. For example, in Ontario, under occupational health and safety legislation, employers also have a duty to investigate both “incidents” and “complaints” of workplace harassment, including sexual harass - ment. Ontario’s occupational health and safety leg - islation also now covers workplace harassment and sexual harassment that occurs virtually through the use of information and communications technology, effectively bringing virtual workspaces into the defini - tion. Even where an incident does not form the subject matter of a complaint, an employer has an obliga - tion to investigate once the harassment “becomes known to the employer”. In British Columbia, there is no express requirement to conduct an investigation into bullying and harassment complaints or incidents, but employers may still be required to do so under their obligation to take reasonable steps to prevent or minimise workplace harassment and bullying. Federally regulated employers are expressly required to investigate all occurrences of harassment and vio - lence whenever an employee files a “notice of occur - rence” or complaint under the Work Place Harassment and Violence Prevention Regulation (WHVP). 1.6 Prohibition on Carrying Out an HR Internal Investigation There are no real prohibitions on carrying out a work - place investigation, but there may be some circum -
stances in which employers may decide not to do so, as further detailed in 1.7 Other Cases . 1.7 Other Cases When faced with the decision as to whether or not to conduct a workplace investigation, it can be helpful to consider the following: if the allegation, concern or issue that has been brought to the organisation’s attention is true, would it be contrary to any law or otherwise problematic for the organisation in any way (including reputational risk)? If the answer to this threshold question is “yes”, then more often than not, an organisation should consider conducting a work - place investigation. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent For internal investigations commenced under provin - cial legislation, the degree of information that must be provided to the “reporter” (ie, someone who reports a complaint) will vary depending on the nature of the conduct reported as well as the reporter’s role and knowledge of the reported conduct. In gener - al, employers should confirm receipt of any reports unless the report is anonymous. If a reporter is also a complainant, then the complainant should be advised that an HR internal investigation has or will be com - menced. It may be appropriate to give them additional details (ie, information about the investigator or interim measures). If a reporter is a third-party or witness, the extent of information provided will depend on their level of involvement and the nature of the conduct. In some cases, it may be appropriate to advise that an investigation has or will be commenced while, in other cases, employers may want to confirm receipt but limit any further information on next steps. Report - ers should also be advised that they should keep the matter confidential (although they may share informa - tion with their spouse or legal counsel or as may be required at law). For internal investigations for federally regulated employers, the WHVP provides specific steps that must occur after receiving a report of an “occurrence” of harassment and violence. Employers governed by
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