Canada: Human Rights Tribunal Finds There Is No Duty To Investigate Absent Discrimination

Last Updated: June 27 2014
Article by Asha Rampersad

On February 24, 2014, the Human Rights Tribunal of Ontario (the "Tribunal") issued its decision in Scaduto v. Insurance Search Bureau, 2014 HRTO 250 regarding the duty to investigate allegations of workplace harassment and discrimination. 

In the specific facts of this case, Mr. Scaduto was employed by the Insurance Search Bureau of Canada ("ISB") for approximately four months when his employment was terminated for poor performance.  ISB had made numerous attempts to provide Mr. Scaduto with additional coaching, training and other assistance before it made the decision to terminate his employment. 

At the termination meeting, Scaduto raised for the first time, that he believed his performance was scrutinized more intensely after he advised his supervisor that he was gay.  ISB did not conduct a formal workplace investigation into this allegation, given that Mr. Scaduto had already been terminated.  Shortly after his termination, Mr. Scaduto filed a human rights complaint alleging that he had been discriminated in employment on the grounds of sexual orientation and failure of ISB to investigate his allegations. 

After reviewing the allegations, the Tribunal concluded that Mr. Scaduto had not been discriminated against, and that there was no duty to investigate the allegations he raised either at the time of termination, or post-termination.  Specifically, the Tribunal found as follows at para. 81 of the decision:

A further difficulty with finding the respondent has violated the Code...stems from the fact that the applicant's complaint was made after the respondent decided to terminate his employment.  The purpose of the duty to investigate is to ensure a complainant is not required to work in a discriminatory environment.  In this case, the applicant was no longer in the workplace.  It could not then be said that the applicant's right to be free from discrimination in his workplace was infringed by the failure to investigate because he was no longer there.

While this decision is helpful for employers, it should not be interpreted to mean that an employer is under no obligation to investigate complaints of harassment or discrimination that are raised by an employee.  Each case will ultimately turn on its own unique set of facts, and internal or external investigation will go a long way to ensuring that employers are doing their due diligence for purposes of the Human Rights Code and Occupational Health and Safety Act.  As an example, we recently blogged on a human rights decision, Morgan v. Herman Miller Canada Inc. where the employer was held liable for general damages even in the absence of a finding of discrimination for failing to investigate a complaint made on the basis of race.   The law, therefore, is far from settled on this point and employers should be cautious when determining whether or not they are required to investigate a complaint.

This is underscored by the fact that the Tribunal in Scaduto affirmed at paragraph 82 of the decision the general principle that 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."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Asha Rampersad
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