Many people wonder whether a written complaint is required before an employer conducts an investigation into workplace harassment. This is a legitimate question, in part because most respectful workplace policies provide that a written complaint is the first step in an investigation.
Although a written complaint may be preferable, one is not required to trigger an employer’s obligation to investigate workplace harassment. As we’ll explore in this first article of a three-part series, this obligation exists across Canadian jurisdictions, even though the specific requirements vary.
Jurisdictions that provide for Incidents or occurrences of harassment
Without delving too deeply into the federal regime, which differs significantly from provincial and territorial ones, it is worth noting that the Government of Canada offers one of the clearest provisions on the matter. Its Work Place Harassment and Violence Prevention Regulations state that “a principal party or witness may, in writing or orally, provide an employer or the designated recipient with notice of an occurrence.”[1] The regulation makes little mention of the term “complaint” and instead refers to harassment “occurrences,” which can be reported either orally or in writing. This clearly indicates that a written complaint is not required for an investigation to take place.
In Ontario, the legislative framework clearly states that the employer has a duty to investigate even in the absence of a complaint. The Occupational Health and Safety Act requires that: “To protect workers from workplace harassment, an employer shall ensure that: (a) an appropriate investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.”[2]
The Ontario Labour Relations Board has interpreted this provision as follows: “Having regard to the use of the terms ‘incidents’ and ‘complaints,’ and relying on the plain and ordinary meanings of those terms, the Act contemplates investigations where there is an incident of workplace harassment. In other words, an incident of workplace harassment is, in and of itself, grounds for an investigation being carried out. That incident can be, but does [not] have to be, the subject of a complaint.”[3]
In New Brunswick, the General Regulation – Occupational Health and Safety Act states that an employer’s code of practice must include “the procedure the employer shall follow to investigate and document any incident of harassment of which the employer is aware.”[4] This wording reflects a proactive approach by the employer in harassment matters: the employer must investigate any harassment incident they become aware of, without specifying a required form. Following Ontario’s interpretation, it is logical and reasonable to assume that such notification may be oral or written.
In Prince Edward Island, the legislature has made it clear, in the Occupational Health and Safety Act, that employers must establish a policy, in accordance with the regulations, providing for measures to prevent and “investigate occurrences of harassment in the workplace.”[5] Following the Federal Government’s example, Prince Edward Island clearly stated that only an “occurrence of harassment” is needed to trigger the employer’s duty to investigate.
In Quebec, the legislature recently amended the Act Respecting Labour Standards to provide, among other things, that employers “must take reasonable action to prevent psychological harassment from any person and, whenever they become aware of such behaviour, to put a stop to it.”[6] While it does not state that employers must investigate, it makes clear that a written complaint is not necessary to trigger the employer’s obligation to take action against harassment.
Further, Quebec’s law also provides that the required policy must set out “the procedures for filing a complaint or report with the employer or for providing information or documents.”[7] This wording removes any doubt that a formal complaint is not a prerequisite for the employer to take action.
In Saskatchewan, the legislature opted for a unique approach by consolidating what are separate statutes in other Canadian jurisdictions, employment standards, occupational health and safety, labour relations, and essential services, into a single statute. Despite this, the Saskatchewan Employment Act still requires that employers establish a harassment policy and “shall ensure that an investigation is conducted into any incident of workplace harassment.”[8]
In Yukon, the Workplace Health and Safety Regulations require employers to implement a violence and harassment prevention policy, which must include “the procedure to be followed by the employer or other person who has investigated an incident or complaint of violence or harassment.”[9]
British Columbia stands out from other jurisdictions because it has not amended its occupational health and safety legislation to include provisions addressing workplace harassment. Instead, harassment in the workplace is governed by WorkSafeBC. Under the general duty of employers to protect workers’ health and safety as outlined in the Workers Compensation Act, WorkSafeBC developed Policy P2-21-2, titled Employer Duties – Workplace Bullying and Harassment. This policy requires employers to develop and implement “procedures for workers to report incidents or complaints of workplace bullying and harassment,” as well as procedures for “how the employer will deal with incidents or complaints of workplace bullying and harassment” and “how and when investigations will be conducted.”[10] Therefore, even though it uses a different framework, British Columbia also clearly states that no written complaint is necessary to trigger the employer’s duty to investigate workplace harassment.
As we can see, all these legislative, regulatory, or policy provisions clearly establish the employer’s duty to act or investigate when they learn that conduct amounting to harassment may have occurred.
Jurisdictions that only provide for harassment complaints
Manitoba,[11] Newfoundland and Labrador,[12] the Northwest Territories,[13] and Nunavut[14] refer only to complaints and not to incidents or occurrences of harassment. For example, Manitoba’s Workplace Safety and Health Regulation states that the employer’s harassment policy must provide information on “how to make a harassment complaint” and on “how a harassment complaint will be investigated.”[15] This wording makes it less clear that the employer must investigate a harassment incident in the absence of a written complaint.
That said, it is very likely that employers in these jurisdictions are nonetheless obligated to investigate even without a written complaint. Indeed, as in most other Canadian jurisdictions, these provinces and territories have provisions stating that employees have the right to work free from harassment. For that right to have meaning, it must be accompanied by corresponding obligations—including the duty to investigate when the employer becomes aware of a harassment incident. Without such a corresponding duty, the right to work free from harassment would lose much of its value if it were contingent on a formal complaint.[16]
Furthermore, since these harassment-related rights are found in occupational health and safety legislation, they fall under the employer’s general duty to take reasonable precautions to protect the health and safety of employees. It would not be reasonable for an employer to ignore a harassment incident that affects employees’ health merely because there is no written complaint.
Therefore, although the law in these jurisdictions does not explicitly require it, employers are still likely obligated to investigate any harassment incident brought to their attention, even without a written complaint. While they may ask the individual concerned to submit a written complaint, the absence of one does not relieve them of their duty to ensure the right to a harassment-free workplace and to take reasonable steps to protect employees’ health and safety.
The One Jurisdiction Without a Provision
On September 20, 2024, Nova Scotia passed legislation requiring employers to implement a harassment policy by September 1, 2025, in accordance with upcoming regulations.[17] At the time of writing, those regulations have not yet been developed. So, currently, it’s impossible to know whether Nova Scotia will explicitly require employers to investigate harassment incidents and complaints or whether it will only refer to complaints.
Conclusion
We can confidently state that all employers in Canada are required to investigate if they become aware of a harassment incident, and that no written complaint is needed to trigger this obligation.
In Part II of this three-part series, we will explore how an employer can proceed when informed of a harassment incident and whether a harassment complaint submitted by a third party is an adequate and acceptable way of informing the employer that a harassment incident may have occurred.
Translated from the original French version.
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Please note the information provided in this blog post is for general informational purposes only and every situation should be evaluated on a case-by-case basis.
[1] SOR/2020-130, subsection 15(1).
[2] R.S.O. 1990, c. O.1, subsection 32.0.7(1)(a).
[3] E.S. Fox Limited v. A Director under the Occupational Health and Safety Act, 2020 CanLII 75931 (ON LRB) at paragraph 75.
[4] Reg. 91-191, subsection 374.4(2)d).
[5] Occupational Health and Safety Act, subsection 12(3).
[6] Act Respecting Labour Standards, chapter N-1.1, subsection 81.19.
[7] Ibid., subsection 81.19(4).
[8] The Saskatchewan Employment Act, c S-15.1, subsection 3-21.1(3).
[9] Workplace Health and Safety Regulations, YOIC 2006/178, subsection 19.03(e).
[10] WorksafeBC, Policy 2-21-2, « Reasonable Steps to Address the Hazard », subsections c) et d).
[11] Workplace Safety and Health Regulation, Man Reg 217/2006, Part 10, subsection 10.2(2)(b).
[12] Occupational Health and Safety Regulations, 2012, subsection 24.1(1)(f).
[13] Occupational Health and Safety Regulations, NWT Reg 039-2015, subsection 34(4)(e).
[14] Occupational Health and Safety Regulations, Nu Reg 003-2016, subsection 34(4)(e).
[15] Workplace Safety and Health Regulation, Man Reg 217/2006, Part 10, subsection 10.2(2)a)-b).
[16] See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII) at paragraphs 49-53.
[17] Nova Scotia Legislature, Bill no 64, Stronger Workplaces for Nova Scotia Act, online: https://nslegislature.ca/legc/bills/64th_1st/1st_read/b464.htm.