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
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
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
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
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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