What you can and cannot do with an investigation report

Workplace investigation reports play an important role in addressing harassment and discrimination at work.

Under the OHSA, employers must investigate incidents of workplace harassment. Best practices include preparing an investigation report. A report can show that an employer fulfilled its OHSA obligations.

While the Ontario Human Rights Code doesn’t obligate a duty to investigate like the OHSA, human rights case law has decided that a proper investigation is part of an employer’s duty to provide a discrimination-free workplace. Failing to investigate can weaken an employer’s defence in human rights claims. And a report can help prove that you’ve investigated properly.

An investigation report can also help to:

• Create a paper trail: A strong report can help defend against legal claims about employer fairness and process, and can provide transparency into decisions about discipline, termination and corrective action.

• Mitigate risk: A report can help employers identify and address issues like discrimination or harassment before they escalate to litigation or permeate the organization.

But beware of using investigation reports as evidence in court or at a hearing. As valuable as reports are, they can’t replace witness and other evidence to defend, for example, a wrongful termination claim.

The Public Service Grievance Board case of Dunscombe v The Crown in Right of Ontario (Ministry of the Solicitor General) (PSG# P-2017-1547) shows that an investigation report is not proof of the underlying facts of the case. The report is still valuable because it offers the basis for an employer’s discipline or termination decision. It helps show that the employer did its due diligence and that the reasons given for the decision were genuine. But in deciding whether discipline or termination was justified, the Board also needed to determine the underlying facts of the incident being investigated. And when trying to figure out what really happened in that incident, the Board relied on the evidence presented during the hearing rather than the findings of the investigation report.

That said, investigation reports can be helpful to employers defending claims in court or at a hearing. Investigators do much of what judges and adjudicators do: they listen to witnesses, assess credibility and decide on issues. Investigation reports can provide employers an idea of how strong their case is. Investigators typically come to findings based on a balance of probabilities, which is the same burden of proof used in civil courts and most tribunals.

At court or a tribunal, investigation reports can provide insights into which witnesses should be relied on, and the strengths and weaknesses of the employer’s defences. The investigation report, and particularly the investigator’s statements of witnesses, may provide the basis to impeach the credibility of witnesses who change their testimony.  

Workplace investigations are integral to maintaining a safe and compliant work environment. Provided they are done and used appropriately, investigation reports are valuable tools for employers before and at a trial or hearing. But employers should also be aware of the limitations of reports, and be prepared to call witnesses to prove the underlying facts their case depends on.