'You have to tell the complainant what you did and what happened and what is going to happen'
While much has been written about the importance of starting and carrying out a thorough investigation, two recent Ontario decisions emphasize that the final phase — communicating the results — is as crucial as the investigation itself.
In August, the Human Rights Tribunal of Ontario ruled that the employer violated its obligations under the Human Rights Code by failing to adequately inform the complainant of the investigation’s findings. The employee, who had reported a coworker’s discriminatory comment, never received confirmation of how the issue was resolved.
The tribunal in Bidwai v. Ontario Teachers’ Pension Plan Board found that while the employer addressed the coworker’s behaviour informally, a failure to communicate the resolution undermined their duty to provide a discrimination-free workplace.
Similarly, an earlier decision in 2024 also found the employers failed in its duties. In Shannon Horner v. Stelco Inc., the company issued a closure letter to the complainant stating that harassment had occurred and corrective actions would be taken. However, the letter omitted key details, such as which individuals were held responsible and the specific actions implemented.
The Ontario Labour Relations Board ruled that vague reporting failed to meet Occupational Health and Safety Act (OHSA) requirements, emphasizing that sufficient details about investigation results and corrective measures must be disclosed to comply with the law.
Baseline obligations for reporting findings
At the heart of workplace investigations lies the obligation to inform both complainants and respondents of the investigation’s outcome. As a workplace investigator, Cindy Lazar says it’s her basic duty to communicate the findings at “a very bare bones level.”
“That’s the absolute minimum: they get to know whether the allegations are substantiated or not. It’s not optional, regardless of whether the finding is misconduct or no misconduct.”
For the employer, the requirements differ based on jurisdiction and whether the workplace is federally or provincially regulated, says Lazar, who is also a labour and employment lawyer at Taylor McCaffrey in Winnipeg. She points out that federally regulated employers governed by the Canada Labour Code must meet heightened obligations.
“The investigation report itself must contain a general description of the occurrence, the conclusions, including those related circumstances of the workplace that contributed to the experience, and also the investigator’s recommendations to eliminate or minimize the risk,” she says.
“The employer has the obligation to provide the report to the parties.”
However, details on the consequences for individuals involved don’t have to be disclosed, says Lazar.
“If there’s a finding that somebody did something wrong, [the complainant] may not find that out pursuant to this rule, but they are told what the recommendations are.”
OSHA requirements for investigations
Ontario’s Occupational Health and Safety Act give a lot of latitude to employers to come up with what's best for their workplace, says Larissa Donovan, lawyer, investigator and mediator at Curtis Law in Kingston, Ont.
“At the heart of those pieces of legislation is the goal of making the employer address workplace harassment,” she says.
“It's not just investigating to check a box and to make sure that you know you're covering your ass… to properly address the issue, it only makes sense that you have to tell the complainant what you did and what happened and what is going to happen.”
There is also an obligation to inform the complainant and the respondent about any corrective action and the results of the investigation in writing, says Donovan, citing as an example the Bidwai case.
“[That] could be as simple as a letter [stating] ‘You complained on this date, we spoke to so and so, they expressed that they wish to apologize to you, and we won't be taking any corrective action going forward.’ That probably would meet the requirements under legislation.”
Bidwai and Horner: where employers fell short
In Bidwai, the tribunal said a “reasonable investigation includes not only investigating the complaint, but also communicating the findings of the investigation and steps taken to address the complaint(s) to all complainants,” and the employer failed to do so.
For Donovan, the decision illustrates how a lack of follow-up can undermine an otherwise sufficient response to workplace discrimination.
While the employer did informally address the issue, and the respondent was apologetic, “where they fell short was just communicating to the complainant how that played out,” she says.
“This shows that the point of the investigation regime, whether it's human rights or OSHA, is to address the harassment, and that can be done really simply. It doesn't have to be done with a full investigation, but it does require that you follow up with the person and help re-establish some confidence in their workplace going forward.”
It’s a common complaint, says Donovan: “The biggest thing we hear over and over again is ‘I told somebody, and they didn't do anything about it’ or ‘I told somebody, and I never heard back.’”
In the Horner decision, being informed about an investigation should include the “specific results” and “specific corrective measures” taken by the employer, said the OLRB.
“Without this information being conveyed, without knowing which respondents were found to have engaged in harassment and what steps an employer has or will be taking to respond to same, a victim of workplace harassment is left with little reliable information concerning serious workplace health and safety matters. That outcome diminishes rather than promotes the objective of protecting workers from workplace harassment.”
Balancing transparency and privacy with investigation results
Both Lazar and Donovan emphasize that while transparency is essential, it must be balanced with confidentiality.
Under Ontario’s OSHA, employers don’t need to provide a report setting out all the findings, says Lazar.
“You don’t have to disclose the specific acts of harassment which were found to have occurred… and you don’t have to disclose the specific levels of discipline to be imposed on respondents.”
For example, if the employer decides to “part ways” with a respondent, the complainant does not need to know the details, such as whether it’s a dismissal or the person quit, she says.
“The concern really is about maintaining the safety of the employees in the workplace. So, in determining how much you're going to share, you have to keep that in mind because, for example, there may be some sharing of information that may be necessary to ensure a safe workplace or to ensure an accommodation.”
How much is disclosed depends on a variety of factors, such as the legislation involved, says Donovan, but fairness and reasonableness are good guides.
To build confidence in the process, employers might want to share some of the investigator’s reasoning for their findings, to “install some trust in the process,” she says. However, if the reasoning was heavily reliant on witness testimony, that can be tricky in trying to maintain confidentiality of the process and not causing further conflict in the workplace.
“There’s language in OSHA that warns about disclosing more than necessary,” says Donovan, which could lead to “further threat of reprisal in the workplace or witnesses feeling like they now have been ostracized for participating.”
There are also more questions circulating in the legal and investigator community about privilege, she says.
“We're seeing some cases coming out of this about whether or not a privilege can attach to a report.”
When there’s no finding of misconduct
One common misstep employers make is assuming that no finding of misconduct absolves them from reporting back to the complainant. Lazar dispels this misconception.
“The base line is that the parties have to be advised that the investigation is completed and what the findings are, even if the finding is that it's not substantiated. So, that's the minimum.”
Additionally, an employer that doesn’t report back the results is missing an opportunity to curtail discontentment in the organization, says Donovan.
“The purpose of the Act is to let people know that this is a safe workplace to come bring your complaints to, and to know that they're going to be addressed appropriately.”
Often, these complaints are largely misunderstandings, she says.
“By no means do I want to downplay how awkward that conversation can be, but giving [the complainant] that closure at least, and then opening up the conversation to say, ‘Well, there was no finding of harassment, there's clearly still some conflict there though — is there other ways this conflict can be addressed? Is there room for mediation?... Did something get lost in translation?’”
Best practices for delivering results of report
Effective communication of investigation results is vital for maintaining workplace morale and trust. Both Lazar and Donovan say the person communicating the findings should not be someone who was involved in the investigation.
“The person who's delivering the results should ideally be a neutral party who didn't have anything to do with the investigation, they were not the fact finder,” says Donovan, as this is often a time for healing, especially if both parties are staying in the workplace.
Plus, if an external investigator is involved, they often do not and should not have knowledge of an employee's disciplinary record or history or information that is relevant to discipline, she says.
“An external investigator should not be delivering news of what discipline or corrective action is going to be given, because they're not the employer, so they don't really have those grounds, or that authority to do so.”
And the results should be conveyed in-person, says Lazar.
“It can be quite difficult, because, depending on the nature of the investigation, it can be quite emotional… You want to meet in a neutral, professional, private place,” she says, recommending also that management circles back with the people involved a few weeks and again a few months later to see how things are going.
Donovan highlights the importance of support during these conversations, such as an EAP program.
“It's probably a good time as well to give a reminder about the prohibition on reprisals, that even if they're very unhappy with the results or they feel betrayed, they can't go chasing down employees that they think were involved. And encourage them to speak to that designated person if they feel like that's something that's happening to them, if they feel like they're experiencing those reprisals.”
Handling objections and new evidence
Investigations don’t always conclude neatly. Lazar emphasizes that new evidence or objections should be handled with care.
“If the investigation is well done, and both the complainant and respondent have had a chance to speak to everything… [they] shouldn't be taken by surprise as to what the issues are,” she says.
“If it is done properly in that way, then I would not reopen an investigation.”
If, on the other hand, it becomes apparent the investigation was badly handled, a new remedy may be required, says Lazar.
Sometimes, if new issues come up after the report is complete, new lines of communication are opened up, says Donovan: “Maybe there's an addendum written to our report, or maybe there's a finding changed, or maybe it doesn't change it.”
But whoever delivers the results should take note of any questions or requests that they can't answer in that moment, she says.
“If you are the HR person that is delivering this message, if you are the senior member of management delivering it, but you don't have the authority, or you don't have the all the information yet to make a promise, certainly don't do that, but take all of their concerns seriously,” she says.
“There may be an interest expressed by one party or another to apologize when they get certain news, or they might express an interest in that one-on-one meeting in mediation or some type of reconciliation. And the best practice would be to take that, don't make any promises in the moment, and canvas it with the other parties.”
