What exactly is ‘appropriate in the circumstances’?

"I think it provides a lot of people with some clarity that was long missing," says Brunelle Lewis. "It only took us a decade to get a proper definition."

A lawyer and workplace investigator at Bernardi in Mississauga, Ont., Lewis is referring to a recent case involving a municipal prosecutor fired five months into a probationary role.

The decision is the first in which the Ontario Labour Relations (OLRB) has directly addressed what it means for a workplace harassment investigation to be "appropriate in the circumstances" under section 32.0.7(1)(a) of the Occupational Health and Safety Act.

The board found the county's investigation was procedurally deficient, and directed submissions on remedy, though it dismissed Gassi's reprisal claim.

Part of the confusion for HR and employers with these types of investigations is there isn’t any kind of set manual, says Emily Kroboth, a senior associate at Dentons in Toronto.

“While there is some published guidance which is helpful, it is difficult to teach the intuitive decisions you have to make along the way as you are doing an investigation.”

What happened at Lambton

Gassi was hired by the County of Lambton as a municipal prosecutor in October 2024. In early March 2025, she filed a written harassment complaint against a range of workplace parties, including court staff, police officers, two outgoing prosecutors, and a presiding justice of the peace.

Angelo DiCarolis, a senior labour relations consultant for the county, conducted the investigation. He met with Gassi twice for a total of three hours, then met with the manager of court services and a general manager. On March 31, 2025, he delivered written results finding the complaint was not supported, but noting steps would be taken to improve working relationships.

In the days that followed, Gassi unilaterally cancelled court tiers on two consecutive days, affecting nearly 180 cases in total, and declared she would be working from home permanently — without following the county's telework policy. When management scheduled a meeting to discuss those issues, she declined to attend. She was terminated on April 4, 2025.

Gassi filed a complaint with the Ministry of Labour alleging the investigation had not been appropriate. The inspector found no violation and issued no orders; she appealed.

Where the county fell short

In what she noted was the first OLRB analysis of what section 32.0.7(1)(a) requires, vice-chair Peigi Ross held that "the board ought not to engage in an assessment of whether the investigation reached the right result, or whether the board would have reached some other conclusion."

What matters, she wrote in Alyssa Gassi v The Corporation of the County of Lambton, is "an assessment of the procedural elements of the investigation" — specifically, "whether the investigation was fairly and appropriately undertaken in a manner that would permit an employer to determine whether workplace harassment has occurred."

The board identified several things the county did right: the complaint was taken seriously and investigated promptly; the investigator understood the OHSA's harassment and reprisal provisions; and the investigator obtained a proper understanding of the complaint through both the written material and interviews with Gassi.

But the investigation began and ended with meetings with two managers. Not one of the other individuals named in the complaint was interviewed or even notified of the investigation. And Gassi was never given the opportunity to respond to whatever DiCarolis had learned in those meetings, despite having been told at the outset that she would be.

The board was careful to note that an appropriate investigation does not require interviewing every witness or pursuing every allegation. Investigators have latitude — but they need to be able to explain their decisions.

"Harassment investigations are, by their nature, fact-driven and the investigator must have some latitude in the conduct of the investigation subject to the kinds of procedural requirements identified by the board,” said Ross.

What 'appropriate' means

The ruling fills a gap that has been open since Bill 132 amended the OHSA in 2016 to impose an explicit statutory duty on employers that they have to conduct investigations that are appropriate in the circumstance, says Lewis.

“The challenge is that the legislation never defined what that actually means,” she says.

“It’s the first decision in which the board has directly addressed what it means for an investigation to be appropriate in the circumstances and provided clear guidance on how the adequacy and fairness of the investigation may ultimately be assessed if it’s ever challenged.”

Lewis says the decision struck the right balance. "It's not like it expanded the Code of Practice to give a very rigid checklist. Instead, what it recognized is that investigators have to be able to exercise their judgment."

Employers and HR should find it helpful that the board struck a balance between flexibility and procedural fairness, she says.

Opportunity to respond

That judgment, however, needs to be documented. Among the decision's clearest practical messages is that the complainant's opportunity to respond is an ongoing obligation throughout an investigation — not a one-time checkbox at the initial interview.

"Investigators may assume that investigation because the party has already been interviewed, there's no need to continue with the opportunity to respond," says Lewis. "This decision reminds us that procedural fairness is an ongoing consideration throughout the investigation — not just something that's done at the initial interview."

Kroboth offers a plain-language version of the same principle.

"You don't necessarily have to dig into every allegation. You don't need to speak to every witness. But what I always say is ‘Make the decision but document it and explain why you made the decision.’

“So, that if it is being reviewed by a third party like the OLRB or even a Ministry of Labour inspector, when they're making that assessment, they're looking for a justification about why you made a certain decision and if that decision was appropriate in those circumstances."

The results letter

On the question of the written results, the board found no violation. Gassi argued she was entitled to the full investigation report, the investigator's notes, and witness statements. Ross rejected that position. The Act requires only that the worker be informed in writing of the results and of any corrective action taken or planned.

"The OHSA says that the complainant and the respondent are entitled to the results of the investigation in writing along with any corrective actions," says Kroboth. "Sometimes that can be misinterpreted by people involved in the investigation or even the investigator that the complainant and respondent are then entitled to a fulsome copy of the report — that's not the case."

Policies that promise more than the Act requires can create unintended obligations and confidentiality complications.

"It's good to understand what is actually required and what the policy actually says and making sure those two things are aligned," Kroboth adds.

Mediation: door opened, not unlocked

Ross also acknowledged the possibility that some complaints might be resolved through informal processes or mediation rather than a formal investigation — but declined to decide whether such approaches could satisfy the statutory duty.

Kroboth advises caution. "I wouldn't take that approach yet because the OLRB only kind of opened the door to the possibility. They actually declined to make a finding about whether that could fulfill the appropriate standard set out in the OHSA… in the meantime, it's important, I think, to conduct whatever investigation is appropriate.

Lewis flags the core risk: mediation doesn't answer the question of whether misconduct actually occurred.

"The purpose of mediation is to help parties resolve a dispute, but it's not to gather evidence or make findings of fact — that's what the investigation is for."

In situations involving serious misconduct allegations, significant power imbalances or ongoing safety concerns, she says, mediation alone is unlikely to be sufficient.

“Choosing mediation, I think in those types of situations leaves the possibility of important issues going unaddressed or unresolved and can create even more workplace risk.”

That said, Lewis says the tool itself isn't without value in the right circumstances: "Mediation itself is an incredibly effective, incredibly powerful tool in the right circumstance. A restorative approach may very well do more to repair a working relationship than a formal investigation."

Reprisal considerations

The OLRB dismissed the reprisal application, finding the termination was driven by Gassi's refusal to attend a management meeting, her unilateral court closures, and her declared intention to work from home — not by the harassment complaint she had filed weeks earlier.

Proximity in time between the complaint and the termination warranted scrutiny, Ross wrote, but was not sufficient on its own.

Kroboth says the reverse onus in reprisal cases makes this area difficult.

"You may be planning an exit for a certain amount of time, and then a harassment complaint pops up, so you might not have been planning for that," she says. "But, in general, if there is any decision about making an exit in the workplace, regardless of what else is happening, it's good to document those decisions and make sure there's a clear reason and also communicate that reason in the termination meeting."

The other piece of documentary proof that is helpful for employers is being able to show consistency with past practice, says Lewis, “so, being able to demonstrate that under similar circumstances or with similar conduct by other workers in the past, that resulted in similar employment decisions.”