No Independent Duty to Investigate Allegations of Workplace Discrimination
It is well established that an employer’s failure to investigate a human rights complaint may result in the employer being ordered to pay the employee additional damages for its failure to investigate. However, a question arises as to whether an employer will have breached the Ontario Human Rights Code (“Code”) if it fails to investigate a complaint of workplace discrimination even though, had it conducted a proper investigation, it would have found that there was no discrimination. There is a line of decisions from the Human Rights Tribunal of Ontario (“Tribunal”) where employers have been found liable for breaching the Code for failing to investigate even though the Tribunal dismissed the allegation of workplace discrimination.
That said, recent Tribunal decisions have found that an employer will not have breached the Code for failing to investigate a complaint of workplace discrimination if no discriminatory act occurred. This was confirmed by the Ontario Divisional Court in Walton Enterprises v. Lombardi, 2013 ONSC 4218 [“Walton Enterprises”]. The Court quashed the decision of the Tribunal writing at para. 54 that employer “liability for a discriminatory dismissal does not rest on a freestanding duty to investigate”.
Since Walton Enterprises was released Tribunal decisions have applied the reasoning of the Divisional Court, with one notable exception. In Sears v. Honda of Canada Mfg., 2014 HRTO 45 [“Sears”] Vice Chair Judith Keene ignored Walton Enterprises, writing at para. 169:
It is well-established in the Tribunal’s jurisprudence that the Code imposes a duty on organizations to investigate a complaint of discrimination, and that a failure to investigate can attract liability, even if the Tribunal ultimately dismisses the underlying allegations of discrimination. See, for example, Dhillon v. F.W. Woolworth Co. (1982), 3 C.H.R.R. D/743; Olarte v. Commodore Business Machines Ltd. (No. 2) (1983), 4 C.H.R.R. D/1705; Persaud v. Consumers Distributing Ltd. (No. 1) (1990), 14 C.H.R.R. D/23, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII), Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 (CanLII), Bekele v. Cierpich, 2008 HRTO 7 (CanLII), Nelson v. Lakehead University, 2008 HRTO 41 (CanLII), Payette v. Alarm Guard Security Service, 2011 HRTO 109 (CanLII).
Vice Chair Keene’s decision in Sears in noteworthy for two reasons. First, every decision she relies to support her proposition was decided before the Divisional Court released its decision in Walton Enterprises. Second, her failure to acknowledge Walton Enterprises does not appear to be an oversight given that it was her decision that the Divisional Court quashed in Walton Enterprises. To date, Sears has not been relied upon by any subsequent decision of the Tribunal.
A decision that appears to better represent the Tribunal’s current jurisprudence is Scaduto v Insurance Search Bureau, 2014 HRTO 250 [“Scaduto”]. Vice Chair Jennifer Scott applied the reasoning in Walton Enterprises writing that there must be a finding of discrimination in order to sustain a violation of the Code. In concluding that the respondent/employer did not breach the Code because it declined to investigate a complaint of discrimination the Vice Chair wrote at para 79:
This case demonstrates the difficulty of finding a breach of the Code solely for the failure to investigate. I have found there was no discrimination in the applicant’s workplace. Therefore, there is no contravention of the Code. It does not make sense to say to the respondent you have contravened the Code because you have failed to investigate the applicant’s complaint, but had you investigated, you would not have found discrimination.
In contrast to Sears, Vice Chair Scott’s reasoning in Scaduto has been followed by several subsequent Tribunal decisions which found no independent duty to investigate a human rights complaint. These decision include Jaipaul v. Ajax (Town), 2014 HRTO 1043 at para. 46; Falodun v. Andorra Building Maintenance Ltd., 2014 HRTO 322 at para. 63; Liu v. Metropolitan Toronto Condominium Corporation No. 541, 2015 HRTO 637 at para. 50; Steel v. Johnson Controls Automotive Canada LP, 2015 HRTO 564 at para. 78;
Although there is no independent duty to investigate complaints of workplace discrimination employers should, nevertheless, take any complaint of workplace discrimination seriously. As noted by Vice Chair Scott in Scaduto at para. 82:
Employers are well-advised to investigate human rights complaints as the failure to do so can cause or exacerbate the harm of discrimination in the workplace. Internal investigations provide employers with the opportunity to remedy discrimination, if found, and can prevent Applications being filed with the Tribunal. They also limit employers’ exposure to greater individual and systemic remedies. The failure to do so is at their peril. But, if they fail to investigate discrimination that does not exist, that failure is not, in and of itself, a violation of the Code. For these reasons, this complaint is dismissed.