Is the report of an investigator hired to investigate allegations of workplace harassment shielded by the doctrine of qualified privilege?
In Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86 (CanLII), the Court of Appeal for Ontario confirmed that it is.
Does an “inspector” appointed by the Ontario Ministry of Labour pursuant to the provisions of Ontario’s Occupational Health and Safety Act have the right to receive and review the entire, unredacted copy of an independent workplace harassment investigator’s report?
In Wal-Mart Canada Logistics ULC v Gail Stewart, 2020 CanLII 2070 (ON LRB), the Ontario Labour Relations Board held that she does.
Can a worker complaining of workplace harassment who pre-emptively refuses to participate in the resulting investigation because she believes the investigator is unsuitable, ask the Ontario Labour Relations Board to appoint an investigator of the Board’s choosing instead?
In Erin MacKenzie v Orkestra SCS Inc., 2023 CanLII 13891 (ON LRB), the OLRB refused to appoint its own investigator.
Does a lawyer acting as a workplace investigator owe a duty of care to the complainant in the workplace harassment case?
In Mezikhovych v. Kokosis, 2022 ONSC 6480, Justice Howard Leibovich of the Ontario Superior Court of Justice held, on a motion for summary judgement, that they do not.
In the period September to November 2019, six complaints were filed against Ottawa City Councillor Richard Chiarelli with the Integrity Commissioner for the City of Ottawa. The Commissioner investigated and then prepared one report in respect to three of the complaints, which were similar. The Commissioner filed the Report with Ottawa City Council on July 9, 2020. City Council considered the Report on July 15, 2020, accepted its conclusions that Councillor Chiarelli had engaged in acts of misconduct in respect to the three complaints, and imposed the maximum available penalty: suspending Councillor Chiarelli’s salary for 270 days in the aggregate. City Council also adopted a resolution calling upon Councillor Chiarelli to resign from City Council.
Councillor Chiarelli applied to the Ontario Divisional Court for judicial review of the proceedings below. He argued that the Commissioner lacked jurisdiction to investigate the complaints, showed bias against him, and denied the Councillor procedural fairness. He argued that City Council exhibited bias against him. He sought various remedies, including orders quashing the findings and sanctions against him and orders prohibiting the respondents from taking further steps against him respecting the complaints.
In its decision released December 22, 2021, Chiarelli v. Ottawa (City of), 2021 ONSC 8256 (CanLII), the Divisional Court (Morawetz C.J.O.S.C.J., D.L. Corbett and Ryan Bell JJ.):
Does the failure to respond to a request for a workplace harassment investigation warrant an award of aggravated damages, where the employee is later terminated for complaining about such harassment?
In Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII), the Honourable Justice Lorne Sossin of the Ontario Superior Court of Justice found that it does.
Will the recently proposed changes to the Ontario Occupational Health and Safety Act finally bring about the workplace violence and harassment protections that so many believed would be implemented as a result of “Bill 168?” It’s possible.
For years I have been critical of the actual effects of the changes to the law brought about by Bill 168. Heralded by many at the time as a necessary change to the law, the experience of the interpretation and implementation of those changes has been grossly underwhelming.
Now the Ontario government is proposing further changes to the law by way of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The Bill passed first reading in the Legislative Assembly of Ontario on October 27, 2015.
A reading of the proposed amendments to the law leaves one with cautious optimism that perhaps change will finally come about.
If an employee is made the prime suspect in a workplace investigation but is found to be not responsible for the harm that was the subject of the investigation, can the employer nonetheless terminate the employee’s employment on a without cause basis with impunity?
In refusing to grant summary judgment fixing the applicable notice period and dismissing the plaintiff employee’s claims for moral and punitive damages in a termination without cause case, the Honourable Justice Margaret Eberhard in the case of Brownson v. Honda of Canada Mfg., 2013 ONSC 896, leave to appeal refused 2013 ONSC 6974, held that the answer may be that no, the employer cannot terminate the employee’s employment on a without cause basis with impunity.
