CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
the WHVP must confirm receipt of the report within seven days and also provide further information to either the complainant or party who is the object of the occurrence (ie, the “principal party”) (see Section 20–21 of the WHVP). A respondent has the right to be informed that an internal investigation will be or has been commenced. In some cases, steps to inform a respondent should be taken immediately if interim measures are required. Generally, a respondent should be advised that there have been allegations made that they have engaged in certain conduct, that an investigator has been retained or will be retained, and, if applicable, any interim measures that will be put into place. Respond - ents should also be advised that they should keep this matter confidential (but may share information with their spouse or legal counsel or as may be required at law) and that they are prohibited from engaging in reprisals against anyone else who may be involved in the investigation. For federally regulated employers, the WHVP provides that respondents must be informed that they have been named as a respondent, advised of the manner in which the workplace violence and harassment pol - icy is accessed, each step of the resolution process, and that they may be represented during the resolu - tion process. There is no prescribed notice period but this information must be provided on the first occasion that an employer contacts a respondent. Once an employer or investigator has particulars of the nature of the allegations, then the respondent must be provided with sufficient particulars of the nature of the allegations prior to being asked to respond to them in a workplace investigation. 2.2 Communication to Authorities In Ontario, where a workplace investigation involves potential abuse or neglect in relation to a minor child, the employer has a legal duty to report it to the Chil - dren’s Aid Society under Section 125 of the Child, Youth and Family Services Act, 2017. There are pro - visions that provide for similar legal duties across all the provinces and territories, however the authorities that must be notified differ depending on the province or territory.
If there is an incident of workplace violence or if work - place violence is likely to occur, employers should request immediate assistance from authorities. All employers (whether provincially or federally regulated) are required to have policies in place setting out meas - ures and procedures around reporting and managing workplace violence and domestic violence, many of which will require an employer to make reports to authorities. This will generally be set out in a work - place harassment and violence prevention policy or health and safety policy. The nature of the policies will differ based on applicable legislative requirements. As will be further discussed in 6.6 Communications to Authorities , investigations that allege to involve criminal conduct may also require an employer to report such conduct to the police. The question of whether employers must report the investigation is context-specific and will depend on various factors including the seriousness of the allegations as well as whether there is any risk of harm to the employer, other employees or the public. 2.3 Confidentiality Agreements and NDAs Employers or investigators may ask individuals involved in an HR internal investigation to sign con - fidentiality agreements to protect sensitive informa - tion and to preserve the integrity of the investigation process. Confidentiality agreements should not pre - vent individuals from reporting any illegal activities, harassment or workplace misconduct to applicable authorities. Confidentiality agreements can help ensure that the investigator is able to gather accurate information and minimise the risk of interference in the investigative process. These agreements may also encourage par - ticipation and honesty in the course of investigation. Absent a confidentiality agreement or specific direc - tion to the participant that the information obtained or provided during the investigation should be kept confidential, there are no specific requirements that a participant maintain confidentiality. Where confi - dentiality is breached, an employer may be required to impose disciplinary measures up to and including termination of employment depending on the nature of the breach.
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