CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
6.6 Communications to Authorities As noted in 2.2 Communication to Authorities , inves- tigations that allege criminal conduct may also require an employer to report such conduct to the police. If the investigation uncovers evidence of criminal con - duct (eg, assault, sexual harassment involving physi - cal threats, theft, fraud), the employer may have a duty to report the criminal conduct to the police or relevant law enforcement agencies. It may also be required to do so under applicable workplace policies. In such cases, employers should consult with criminal coun - sel. Reporting requirements to other statutory authorities differ based on jurisdiction, the nature of the mis - conduct, and the employees involved. For example, in Alberta, if an incident of harassment or violence results in the death of an employee (or worker), or if there is reason to believe the employee has been or will be admitted to a hospital beyond treatment in an emergency room or urgent care facility, the employer is required to report the matter to a Director and others under Section 391.1 of the Occupational Health and Safety Code. Other provinces have similar require - ments under occupational health and safety legisla - tion where an employee suffers a serious injury or dies because of a violent incident in the workplace. Feder - ally regulated employers must report all occurrences of harassment and violence to the Minister of Labour under the WHVP in their annual report (see Sections 35–36). Additionally, in highly regulated industries like bank - ing, finance and insurance, findings of certain mis - conduct (ie, fraud or embezzlement) in an internal investigation report may result in a positive obligation to report the results to regulatory bodies such as a securities commission or the appropriate provincial authority that oversees and regulates insurance and related services. Similarly, if the subject of the inves - tigation is a regulated professional (for example, a lawyer, doctor or accountant), the findings may need to be reported to the relevant regulatory body in the province (for example, the law society, the college of physicians and surgeons).
conclusion and, if part of the mandate, recommen - dations. Unless specifically requested, recommenda - tions are not usually included in a workplace investi - gation report. 6.5 Information As a matter of procedural fairness, parties ought to be advised of the outcome of an investigation follow - ing its conclusion. However, this does not necessar - ily mean that parties have a right to access written reports in their entirety. Several jurisdictions require that a complainant be informed in writing of the results of an investigation and any corrective action that has been or will be taken (see – eg, Section 32.0.7 (1) (b) of Ontario’s Occupational Health and Safety Act; Section 390.6 of Alberta’s Occupational Health and Safety Code). The only legislation that requires dis - closure of an investigator’s report is for federally regu - lated employers. The WVHP Regulations specifically require an employer to provide a copy of the report to the complainant, respondent and other designated parties (see Section 30 (1)). A recent case from the Ontario Labour Relations Board (OLRB), Shannon Horner v Stelco Inc. Lake Erie , 2024 CanLII 16448, provides additional guidance on the statutory interpretation of Section 32.0.7 of Ontario’s Occupational Health and Safety Act. There, the OLRB found that the employer’s closure letter sent to the complainant was insufficient because it did not inform the complainant of which named respondents were found to have engaged in harassment and it did not inform her of the corrective action that had or would be taken. The ORLB also confirmed that Section 32.0.7 (1)(b) does not require employers to provide the report setting out all of the findings of fact nor does it require employers to disclose the specific acts of harassment that were found to have occurred (paragraph 53). Recently, the Ontario Human Rights Tribunal also found that employers must communicate the findings of the investigation and steps taken by the employer in response to the findings to all complaints. These form part of the employer’s duties to reasonably investigate complaints under the Human Rights Code ( Bidwai v Ontario Teachers’ Pension Plan Board , 2024 HRTO 1092).
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