Sexual harassment in the workplace causes real harm: to the individuals who experience it, to the colleagues who witness it, and to the organizations that fail to address it.
Employers and employees alike often find themselves without a clear roadmap when a complaint arises, unsure of their rights, their responsibilities, or what a proper process even looks like.
In this article, the investigation lawyers at Walker Law break down what Ontario law requires and what a fair, defensible investigative process looks like in practice.
Rights and Obligations Under Ontario Law
Employees in Ontario are protected by a layered framework of legislation.
The Occupational Health and Safety Act (“OHSA”) prohibits sexual harassment in all work environments, including virtual ones, and covers two categories of conduct:
- unwelcome behaviour tied to sex, sexual orientation, or gender identity that a reasonable person would recognize as offensive; and
- sexual pressure or solicitation from someone who holds authority over the complainant.[i]
The Ontario Human Rights Code (the “Code”) runs alongside OHSA, protecting employees from harassment by employers, managers, and colleagues, and, critically, shielding anyone who comes forward from retaliation.[ii]
The common law reinforces both statutes by treating sexual harassment as a form of discrimination rooted in unequal power.[iii]
One thing both employers and employees often miss is that harassment does not have to happen at the office to count. A group chat on a personal phone, a team dinner that goes sideways, or comments made at an after-work gathering can all engage these protections if there is a sufficient connection to the working relationship.[iv]
For Employees: When a Complaint is Made
Coming forward with a harassment complaint is rarely easy. Fear of not being believed, concern about professional consequences, and uncertainty about the process are all common and legitimate concerns.
Employees have the right to have their complaint taken seriously regardless of how or when they raise it. Disclosures that come informally, through a third party, or well after the fact are all legally significant. Delayed reporting is not evidence of dishonesty. Trauma, power imbalances, and fear of retaliation are well-documented reasons why people wait, and a fair investigation will account for that. Employees also have the right not to be punished for coming forward. Retaliation, whether overt or subtle, is prohibited under the Code, and any adverse treatment following a complaint should itself be documented and reported.[v]
Importantly, whether an employee makes a complaint or not does not determine whether an investigation should happen. The Ontario Court of Appeal has confirmed that employers have a duty to investigate.[vi] This is because the duty exists not only to protect the immediate victim in a particular incident, but to also protect any other employees from potentially being subject to the same harassment.[vii]
For Employers: The Investigation
Employer obligations under Ontario law are extensive and non-negotiable. OHSA requires an investigation that is timely, impartial, and objective whenever a harassment complaint or incident arises.[viii] Employers who wait for a formal written complaint, or who stand down because a complainant seems reluctant, are potentially taking on significant legal risk.
The intake stage is where many investigations are set up for success, or for failure. How an employer responds in the immediate aftermath of a disclosure, whether it treats informal reports with the same seriousness as formal ones, whether it avoids drawing adverse conclusions from a delayed or fragmented account, and whether it puts appropriate interim protective measures in place, sets the tone for everything that follows.
Interim measures, such as schedule adjustments or temporary workspace changes, should be clearly communicated as temporary and non-disciplinary measures. An employee who perceives a protective measure as punishment has grounds for a legitimate grievance.
Defining the investigation’s scope carefully is equally important. A mandate that is too narrow may miss relevant evidence while one that is too broad turns a conduct inquiry into a character attack on the respondent (the employee alleged to have engaged in the misconduct). The scope should be confirmed in writing at the outset, framed around specific alleged conduct, and any changes should be documented with clear reasons.
What a Fair Investigation Actually Looks Like
A fair investigation treats all parties, the complainant(s) and the respondent(s), with procedural respect. That means each party gets a genuine opportunity to tell their story, respond to contrary evidence, and address preliminary findings before conclusions are reached.
The Federal Court’s decision in Marentette v. Canada is a cautionary example: an investigator’s report covering several alleged incidents was set aside on judicial review because the complainant was never given the chance to respond to evidence that contradicted her account. Good findings built on a flawed process do not survive scrutiny.[ix]
Interviews should be conducted with a trauma-informed approach. Open-ended questions, space for uninterrupted narrative, and a respectful environment produce more reliable accounts than structured or leading questioning.
Credibility assessment should also resist familiar stereotypes. As mentioned above, a complainant who did not protest at the time, who delayed coming forward, or who maintained a civil relationship with the respondent afterward has not undermined their account. These are documented responses to fear, power imbalance, and trauma and not indicators of dishonesty. An investigation that treats them as red flags is analytically weak and legally vulnerable.
The Bottom Line
For employees, knowing your rights is the first step toward enforcing them. For employers, understanding your obligations is the first step toward meeting them. A well-conducted investigation does not just resolve a complaint or incident, but it demonstrates that your workplace takes dignity and fairness seriously, and it provides a defensible record if the matter is ever challenged.
Walker Law advises both employers and employees on workplace harassment, investigations, and related employment matters in Ontario. Contact Walker Law to discuss your specific situation.
Tags: Investigations, Employment Litigation Law
[i] Occupational Health and Safety Act, R.S.O. 1990, c. O.1, at section 1(1).
[ii] Human Rights Code, R.S.O. 1990, c. H.19 at section 7(2).
[iii] Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 SCR 1252.
[iv] Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415 at para. 42 [Metrolinx].
[v] Human Rights Code, R.S.O. 1990, c. H.19 at section 8.
[viii] Workplace harassment: investigation by the employer; Occupational Health and Safety Act, R.S.O. 1990, c. O.1, at section 32.0.7(1)(a).
[ix] Marentette v. Canada (Attorney General), 2024 FC 676 at para. 15, para. 38, para. 56.