Law Times

Law Times • sepTember 8, 2014 Page 11 www.lawtimesnews.com Confusion remains over duty to investigate Recent case found employers don't have to launch discrimination probe By marg. Bruineman For Law Times recent decision by the Ontario Human Rights Tribunal has focused the spotlight on employers' duty to inves- tigate a discrimination com- plaint in the workplace and determined there are some situ- ations in which they don't need to undertake an investigation. But the tribunal also warned this is an area in which employ- ers should tread very carefully. "In previous cases, the tribu- nal has held an employer liable for the failure to investigate an allegation of discrimination even in circumstances where one, the underlying complaint is found to be without merit and two, the complaint is not made until aer the employee's termination," says Leah Simon, an employment lawyer with Sherrard Kuzz LLP. at approach, she says, is inconsistent with the Ontario Human Rights Code as it doesn't impose an independent duty to investigate. e employer's obli- gation is to provide a workplace free from discrimination. To in- vestigate a discrimination com- plaint when the employee is no longer at the workplace will have no impact on someone who's no longer there, she adds. Simon represented Insurance Search Bureau in Scaduto v. In- surance Search Bureau in which Andrew Scaduto charged that his job performance was sub- ject to greater scrutiny during his employment because of his sexual orientation. He also al- leged his sexual orientation was a factor in the decision to termi- nate his employment and that his former employer had failed to investigate his complaint. Scaduto worked for the In- surance Search Bureau, a docu- ment retrieval company that provides a range of search ser- vices to its clients, from March 17 to June 15, 2011. During that period, he faced questions about the quality of his work. Tribunal vice chairwoman Jennifer Scott found the behav- iour of one of his supervisors to be problematic. A key ques- tion was whether the supervi- sor's own attitude had to do with Scaduto's sexual orientation. In her decision, Scott determined that although the supervisor's treatment of her employee was unfair, it wasn't discriminatory. Ultimately, she found Scadu- to hadn't told his supervisors he was gay and didn't raise any is- sues of discrimination until aer the termination. She dismissed the complaints of harassment, failing to investigate during em- ployment and aer the dismiss- al, and termination. And although Scott found the company's failure to investi- gate the complaint didn't cause or contribute to discrimina- tion in the workplace because it didn't exist in this case, she is- sued something of a warning to employers. "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 investiga- tions provide employers with the opportunity to remedy dis- crimination, if found, and can prevent applications being filed with the tribunal. ey also limit employers' exposure to greater individual and systemic remedies. e 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," wrote Scott. Stuart Rudner, an employ- ment lawyer with Rudner Mac- Donald LLP, says the decision is consistent with the Divisional Court's conclusion in Walton Enterprises v. Lombardi, in which it confirmed it's up to the worker to prove discrimination and there's no free-standing duty for the employer to investigate. e court determined that the duty to investigate arises once a party has established that discrimina- tion took place. In Walton, the court agreed with the employer that the tri- bunal had erred in its finding that a fist fight that led to the worker's termination was partly a reaction to his being subject to harassment because of de- pression as well as perceived obesity and perceived homo- sexuality. e court concluded he had failed to prove a connec- tion between the harassment and the fight. In Scaduto, Scott pointed to Walton in her determination that a failure to investigate non- existent discrimination wasn't a contravention of the Ontario Human Rights Code. "Of course, all of this analy- sis takes place aer the fact and aer a determination has been made regarding the existence of discrimination," says Rudner. e problem is an employer can't always guess what a tribu- nal or court will conclude. So by not investigating a complaint, an employer could create a risk of future liability. Rudner suggests employers take reasonable steps to investi- gate complaints of discrimina- tion or harassment. And he says employers should ensure they have effective harassment and discrimination policies, com- municate them to all employees, and enforce them consistently. For lawyer Asha Rampersad, the law remains unsettled when it comes to an employer's duty to investigate complaints. Even though February's decision in Scaduto is helpful for employ- ers, they shouldn't interpret it to mean they're under no obliga- tion to investigate an employee's complaints of harassment or dis- crimination. Each case, she adds, will turn on its own unique set of facts and an investigation will go a long way to ensure employers are fulfilling their duty. "As management counsel, we always encourage employers to investigate . . . but it always de- pends on the facts of the case," said Rampersad, an associate with Crawford Chondon & Partners LLP. She points to Morgan v. Her- man Miller Canada Inc., in which the tribunal held the em- ployer liable for general dam- ages in relation to the worker's termination even in the absence of a finding of discrimination. at April 2013 decision in- volved allegations of discrimina- tion based on colour and reprisal. While the tribunal found no dis- crimination in the assigned work or how the employer disciplined the worker, it did find a problem with how it reacted to the harass- ment and discrimination com- plaint. It concluded the employer's decision to terminate the worker followed his complaints and threat to sue the company. Although there was no sub- stance to the allegations, the employer didn't investigate and chose to terminate the worker, which is when it ultimately made its mistake. In addition to awarding dam- ages and lost wages, the tribunal ordered the employer to review its human rights policy, distrib- ute it to its workers, and train its managers. It also ordered its former vice president to take the Ontario Human Rights Com- mission's course on human rights. In Scaduto, Scott emphasized the fact that "an employer's fail- ure to investigate a complaint of discrimination can contravene the code when it causes or con- tributes to discrimination in the workplace." at, says Ramp- ersad, leaves the door open. e key for employers is their responsibility to ensure the workplace is free from discrimi- nation and an investigation into any complaint will demonstrate their willingness to follow the Human Rights Code. It all boils down to the steps the employer takes to address the issue and, in the case of a former employee, ensure the problem isn't systemic and cur- rent workers aren't subject to discrimination. at means managers and supervisors ought to be aware of their responsibilities and legal obligations. "My advice to employers is therefore to ensure managerial personnel receive regular, prac- tical, hands-on training to en- sure they are equipped to iden- tify and respond appropriately to a code-based complaint," says Simon. LT FOCUS 6\YKLKPJH[LKSLNHSIYVRLYHNLÄUHUJPHSHUKHKTPUPZ[YH[P]L[LHTZWYV]PKL [OLTVZ[[OVYV\NOHUKL_WLKPLU[ZLY]PJL[VLHJOHUKL]LY`JSPLU[ >LPU]P[L`V\[VJVU[HJ[\Z[VKH`@V\JHUJV\U[VU\Z THE MOST THOROUGH & EXPEDIENT SERVICE GUARANTEED. PROUD SPONSOR OF SPINAL CORD INJURY ONTARIO AND THE ONTARIO BRAIN INJURY ASSOCIATION 1.800.263.8537 | www.henderson.ca HENDERSON STRUCTURED SETTLEMENTS Untitled-2 1 14-08-29 2:38 PM E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 Willowdale, Ontario M2N 5W9 (905) 731-5812 evlitigation@rogers.com E. V. Litigation & Financial Services Inc. Elaine G. Vegotsky, CMA, CFE, CFI Assisting you in Litigation & Forensic Accounting, Financial Investigations x a F r o e n o h p e l e T 0 0 9 e t i u S 0 7 3 1 - 0 3 9 ) 6 1 4 ( , t s a E e u n e v A d r a p p e h S 5 4 evlitigation@rogers.com Toronto, Ontario M2N 5W9 (905) 731-5812 CFA, CPA, Vlit_LT_Mar10_14.indd 1 14-03-04 10:18 AM A Employers should take reasonable steps to investigate complaints of discrimination or harassment, says Stuart Rudner.

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