'Having done it once doesn't mean you don't have to do it again, even if it's the same parties'
“You have to take complaints seriously, engage in investigation of those complaints as they come in, communicate the results, satisfy your occupational health and safety requirements and your internal policy obligations, and take each one as they come in sequence - simply having done it once doesn't mean you don't have to do it again, even if it's the same parties.”
So says Michael Horvat, a partner in the Workplace Law Group at Aird and Berlis in Toronto, after a university breached its policies along with its safety and human rights obligations by failing to properly investigate a professor’s complaints.
“You have to address the issue that any subsequent complaint is a new complaint, or an indication that [the alleged harasser] hasn't dealt with the corrective actions that have been taken,” says Horvat.
Harassment from colleague
The worker was a tenured professor at Toronto Metropolitan University (TMU). TMU had a harassment and incivility policy that complied with the Ontario Occupational Health and Safety Act (OHSA) definition of workplace harassment. The policy also set out procedures for reporting, investigating, and responding to harassment complaints.
In the fall of 2011, the worker’s relationship with a colleague became strained. The colleague started taunting or confronting her every time she went to her office or passed by his office. The worker brought this to the attention of TMU’s human rights services (HRS) and asked the dean for a camera outside her office.
In early 2013, the worker raised concerns about a toxic and unsafe work environment. She also requested an office relocation for either herself or the colleague, and again asked for a camera outside of her office.
In August the dean told her that she had determined that the colleague was not uncivil to her.
In 2014, the worker drafted a human rights complaint and met again with the dean about her concerns regarding her colleague’s behaviour.
Violence risk assessment
In January 2015, the worker contacted security and the Violence Risk Management Office (VRMO) about the colleague’s conduct. The VRMO determined that the risk of violence from the colleague was low.
The worker again asked for an office relocation and submitted a human rights complaint on May 8. The colleague responded by filing a complaint of harassment and incivility against the worker.
TMU retained an outside workplace investigator, Rubin Thomlinson LLP, to investigate the worker’s “mixed civility/discrimination allegations” and the colleague’s complaint against the worker, to determine whether they represented “uncivil behaviour” as defined in the university’s civility guide.
On Jan. 1, 2016, the colleague retired, but remained involved with TMU on an “emeritus” basis.
In January 2017, Thomlinson provided its final report, which found that some of the incidents reported by the worker were substantiated while others were not a violation of the civility policy. The colleague was given a letter indicating that his conduct was in breach of the civility policy and his behaviour needed to change if he was to remain involved with TMU.
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More harassment complaints
The worker continued to raise concerns about ongoing harassment from the colleague. In April 2017, HRS determined that the colleague’s behaviour did not fall under TMU’s sexual violence policy but related to “intimidation or ‘watching and besetting.’” The VRMO again determined that the risk of violence was low.
TMU provided the worker with a copy of the Thomlinson report in September 2017 and the worker provided a medical note seeking an office relocation for medical reasons.
The worker filed a grievance alleging that TMU failed in its obligations to protect her health and safety under the collective agreement and the OHSA. She later contacted HRS about human rights complaints in relation to the colleague’s harassment and bullying.
The worker’s office was relocated in January 2018, but she continued to raise issues of harassment. She made another harassment complaint in March against the colleague and filed a second grievance in October alleging that TMU failed to investigate her harassment allegations as required by the collective agreement and the OHSA.
In 2020, HRS informed the worker that her 2017 human rights complaints were dismissed.
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Employer’s obligations
The arbitrator noted that the OHSA required employers to ensure that “an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances” and to “inform a complainant and alleged harasser in writing of the result of the investigation and any corrective action.”
The arbitrator found that the VRMO assessed the risk of violence only, not harassment. In this context, TMU met its obligations regarding workplace violence, said the arbitrator.
However, the worker also reported a pattern of alleged workplace harassment that TMU was obligated to investigate, which it did by initiating the Thomlinson investigation.
The arbitrator found that the Thomlinson investigation findings of incivility and unacceptable behaviour under the civility policy constituted workplace harassment for which TMU was obligated to follow up with corrective action.
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Continuing harassment
The arbitrator also found that the warning letter to the colleague was an appropriate application of progressive discipline following the Thomlinson investigation.
However, not moving the office of either the worker or the colleague after the investigation report was released was not reasonable, knowing that the worker had been subjected to harassment, the arbitrator said. TMU also failed in its obligation to keep the worker informed, as it didn’t provide her with details of the investigation report until September, eight months after it was released, said the arbitrator.
When the worker continued to raise concerns, the VMRO once again investigated but, as before, it assessed the risk of violence only. TMU’s obligations under the harassment policy required it to look into the matter “through the lens of harassment,” the arbitrator said.
The arbitrator noted that, although the worker’s allegations were similar to those investigated by Thomlinson, some of them were new and should have been investigated – particularly since the Thomlinson report concluded that the colleague had engaged in uncivil behaviour and there was a possibility of further harassment.
“The university should have been attuned to the fact that the actions may have been continuing, and so the risk here is, what do you do in a circumstance where the allegations are similar, but it appears that the individual who is the subject of the allegations is not improving their behavior?” says Horvat. “The arbitrator is basically saying, ‘That's why you have an investigation to make that determination, and simply having done one doesn't mean you don't have to do another one.’”
Ontario employers are required by the OHSA to conduct investigations into allegations of workplace harassment and sexual harassment.
Investigate through human rights lens
In addition, TMU was in breach of its obligation to investigate human rights complaints. Even though some of the events had been previously investigated by Thomlinson, the VRMO, and the security department, TMU had an obligation to investigate them “through the lens of the [Ontario Human Rights Code],” the arbitrator said.
The arbitrator determined that TMU breached the OHSA by failing to arrange a reassignment of offices, failing to advise the worker in a timely way of the results of the Thomlinson investigation, and failing to investigate the worker’s harassment complaints following the completion of the Thomlinson investigation. TMU also breached the code by failing to conduct an investigation into the worker’s human rights complaint.
The arbitrator reserved the decision on remedy for further analysis.
There could have been some fatigue setting in for the TMU administration, which is human nature, says Horvat, but TMU should have assessed what allegations were new or rehashed allegations that had already been investigated.
“The arbitrator said they could utilize the prior investigation, but only up until the time that the investigation was concluded,” says Horvat. “There were certain findings in the report that should have given the employer even more concern about allegations of continuing misbehavior and the need to investigate again.”
Horvat says that TMU’s narrow focus on the worker’s complaints serves as a caution to employers.
“When you engage your obligation to investigate under the OHSA and your policies, don't lose focus over other related allegations that may create a situation in which you also have to address issues of harassment and not just threats of violence, or issues of discrimination under your human rights policy and under the code,” says Horvat. They don't have to be connected, so not every harassment complaint may be related to a protected ground.”
