When Should Toronto Employers Hire an Independent Workplace Investigator?

Toronto employers should consider an independent workplace investigator when a complaint involves senior leadership, creates a conflict for HR, requires specialist experience or exceeds the internal team’s capacity. Ontario law does not require an external investigator for every harassment complaint. The employer must ensure that the investigation is appropriate to the circumstances.

The practical question is who can examine the allegations fairly, thoroughly and without interference. Here is how to make that decision.

What does Ontario law require

For provincially regulated workplaces, section 32.0.7 of Ontario’s Occupational Health and Safety Act requires employers to ensure an appropriate investigation into workplace harassment incidents and complaints. A formal written complaint is not the only trigger.

The ministry’s workplace harassment investigation guidance describes a process that is prompt, objective, confidential and thorough. A suitable internal investigator may conduct it; outside help is not automatically required.

Under section 55.3, an inspector can also order an investigation by an impartial person with specified knowledge, experience or qualifications, at the employer’s expense.

Federally regulated employers follow a different framework under the Canada Labour Code and associated regulations. Establish which requirements apply before setting the mandate.

Five reasons to consider an external investigator

1 The complaint involves someone with authority over HR

An employee alleges harassment by the executive who oversees the HR director’s work. Even an experienced HR director may struggle to investigate someone who controls their role or resources. Participants may also hesitate to speak openly.

An external investigator can provide distance from those reporting relationships. The organization should still establish who will receive the report and how the investigator will work without interference.

2 The proposed internal investigator is already connected to the matter

An HR professional may have witnessed an incident, advised one of the parties or helped make a decision now being questioned. That involvement needs to be considered before assigning them the investigation.

The same scrutiny applies to an outside investigator. Ask about previous relationships with the organization and the people involved. Being external does not automatically mean being impartial.

3 The allegations require experience the internal team does not have

Sexual harassment allegations, multiple complainants or conflicting accounts can require substantial interviewing and evidence-assessment skills. The investigator needs to explore difficult issues without assuming either that a complaint is proven or that an inconsistency makes it false.

A trauma-informed approach considers how trauma may affect participation and recall while preserving impartiality and a fair opportunity to respond. Ask prospective investigators how they apply that approach in practice.

4 An earlier process left important questions unanswered

Repeated complaints about the same conduct may warrant a closer look at what was previously examined. Was relevant evidence missed? Were witnesses unavailable? Did the earlier mandate leave out allegations that now need attention?

An external investigator can bring a fresh perspective. Any new investigation should have a clear scope and consider the earlier record without treating either the previous findings or the new allegations as automatically correct.

5 The internal team cannot give the investigation enough time

An HR team may have the necessary skills but lack the capacity to interview participants, review records and prepare reasoned findings promptly. Competing responsibilities can leave a complaint unresolved and evidence harder to obtain.

External support may be appropriate when internal resources would cause avoidable delays. Confirm the proposed investigator’s availability and reporting schedule before engaging them.

How should an employer choose a workplace investigator

Start with the allegations and the work required. A senior title or professional designation alone does not tell you whether someone is suitable for the assignment.

Ask:

• What relevant experience do you have? Look for investigations involving comparable allegations and organizational circumstances.
• Are there any conflicts or prior relationships? Consider both actual conflicts and reasonable concerns about impartiality.
• How will you conduct the investigation? Discuss interviews, evidence gathering, opportunities to respond and confidentiality limits.
• What will the report contain? Clarify the scope of findings and how the investigator will explain the evidence and reasoning.
• When can you begin, and how will fees be managed? Agree on availability, scope, fee arrangements and how changes will be handled.

Define the investigator’s role separately from the employer’s decisions about corrective action. The mandate should make clear which questions the investigator is being asked to answer.

How long should a workplace harassment investigation take in Ontario

Ontario’s ministry advises employers to investigate as soon as possible, ideally within 90 days or less unless there is a compelling reason for a longer process. This is guidance, not a fixed statutory deadline under the OHSA.

The number of allegations, witnesses and records can affect timing. Establish a realistic schedule at the outset and explain material delays to participants without disclosing confidential evidence.

What should employers understand about confidentiality and results

Confidentiality has limits. Information may need to be disclosed to investigate, take corrective action or meet legal requirements. Avoid promising participants absolute secrecy.

The OHSA requires written results and information about corrective action taken or planned to be provided to the worker who allegedly experienced harassment and the alleged harasser, if that person is a worker of the employer. That obligation is distinct from providing everyone with the full investigation report.

Independent workplace investigations for Toronto employers

Sullivan Investigative Insights provides independent workplace investigations for employers, HR teams and legal counsel responding to sensitive workplace allegations.

Led by Rosellen Sullivan, KC, the practice brings trial-law experience, careful evidence assessment and a trauma-informed approach to workplace investigations. The focus is a fair process and clearly explained findings that help an organization decide what happens next.

Considering outside support? Email rsullivan@sullivaninsights.ca with a brief overview of your organization’s concern and any urgent timing requirements. Start with a general summary so the appropriate intake process can be established before sharing sensitive records.