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:

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