This issue was dealt with in the human rights context in Murchie v. JB's Mongolian Grill CanLII-2006 HRTO 33 (CanLII), at paragraphs 165 to 172, where a seriously flawed internal investigation of a complaint of sexual harassment was found to be in violation of section 5(1) of the Human Rights Code. The adjudicator, (then) Vice-Chair Ross Hendriks referred to earlier decisions by (then) Chair Garfield in Laskowska v. Marineland of Canada Ltd., (2005), 53 C.H.R.R. D/262, 2005 HRTO 30 (CanLII), at paragraphs 51-53, where he cited the earlier decision of (then) Vice-Chair Laird, in Moffatt v. Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19 (QL) [35 C.H.R.R. D/205), at paragraph 234:
"Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code: Dhillon v. F.W. Woolworth Company (1982), 3 C.H.R.R. D/743; Olate v. DeFilippis and Commodore Business Machines Ltd. (1983), 4 C.H.R.R. D/1705; Persaud v. Consumer's Distributing Ltd. (1990), 14 C.H.R.R. D/23.
It would make the protection under s.5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it..."
At paragraph 166 of this decision, it was held that:
Was the Corporate Respondent's Response Reasonable? [subheading]
[166] The Corporate Respondent was correct to conduct an investigation. However, it ought to have been more careful in its choice of investigator, and in the manner in which the investigation was conducted. I cite with approval a passage from How to Conduct a Workplace Human Rights Investigation, at page 56:
"It is very important that the investigator understand human rights legislation and the concept of harassment in particular. This will ensure that the investigation is conducted and the questions are asked in a manner that accords with statutory requirements. The investigator should also have experience and sensivity in dealing with employees and employment issues.
The perception of neutrality and a lack of bias to both the complainant and the alleged harasser are key qualities the invesigator must possess. Therefore, the person chosen should not be in a position of influence over these individuals, and should not make decisions regarding their compensation, discipline, demotion, opportunities for advancement, or any other terms or conditions of their employment.
Care should be taken to select an investigator to suit the situation. For example, if the complaint is one of sexual harassment and the allegations warrant it, the employer should consider having both a man and a woman conduct the investigation. This will ensure a gender-balanced investigation. Similarly, if the complaint involves harassment based on race or religion, having a person from a similar background, who can offer insight into the meaning of events and comments, conduct the investigation may be preferable."
[167] There are six elements to the "Wall" test used to assess the reasonableness of the employer's response, see: Wall v. University of Waterloo (1990), 27 C.H.R.R. D/44 (Ont. Bd. Inq.), at paragraph 160, which are summarized as follows:
*There is an obligation of promptness in dealing with a harassment complaint.
*There is an awareness by the employer that sexual harassment is prohibited conduct.
*The issue must be dealt with seriously.
*The employer must demonstrate that there is a complaint mechanism in place.
*The employer has an obligation to provide a healthy work environment.
*There is an obligation for management to communicate its actions to a complainant.
[168] I find that the Corporate Respondent did deal with the matter promptly and did have awareness that sexual harassment is prohibited conduct. However, it is clear from the evidence that the sexual harassment policy in place was not followed, and that from an objective perspective, the manner in which the investigation took place was not reasonable, for the reasons set out below...
Why the Investigation was Flawed
[170] In this instance, neither ...had been given any human rights training. Moreover, each of them had a friendship with Ms. Murchie, and so neither of them was neutral. Ms. McQueen felt that she had been "bumped off" the investigation, but was nevertheless required to attend the meeting held on Tuesday with Ms. Conyers and Ms. Murchie, and also required to post Mr. Butkus's message. She was clearly unsure of her role...she should never have been made an investigator from the outset.
[171] The confusion that resulted from this flawed investigation was rampant: Mr. Odd testified that he never felt that the investigation had ended. There was gossip in the workplace, which was attributed by Ms. Murchie to management, which added to the subtext of these issues. When management did not like Ms. Murchie's "demeanour", it seemed to change their outlook about their obligation to conduct a neutral investigation under the Code...
[172] As a result of all of these factors, I find that the investigation was seriously flawed. The manner in which it was conducted itself constituted a breach of the Code under section 5(1). This could have been avoided if the investigation had been conducted by the Corporate Respondent's Human Resources Department, by outside counsel, or some other neutral third party. I appreciate the evidence given by Ms. Conyers that in light of the "mistakes" made, management has since been given human rights training.
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