What Does an Investigation That’s “Appropriate in the Circumstances” Mean? The OLRB Weighs In

In 2016 the Occupational Health and Safety Act (OHSA) began requiring employers to conduct investigations into incidents and complaints of workplace harassment that are “appropriate in the circumstances”.  Since then, employers, HR professionals, investigators, and lawyers have been grappling with what “appropriate in the circumstances means”; until now.

Alyssa Gassi v. The Corporation of the County of Lambton(“Gassi”)[1] is the first case in which the Board[2] has considered the scope of an employer’s duties in conducting a workplace harassment investigation that is “appropriate in the circumstances”.[3] 

The Background

Alyssa Gassi was a municipal prosecutor with the County of Lambton. Alyssa filed a complaint with the County alleging a pattern of harassment by several individuals. The County investigated the complaint and concluded that her allegations were not substantiated. Her employment was terminated thereafter[4] and Alyssa filed a complaint with the Ministry of Labour, Immigration, Training and Skills Development challenging the appropriateness of the investigation. The inspector found no violations of the OHSA and declined to issue any orders. Alyssa then appealed that decision to the Board.[5]

What did the Board say?

 The Board provided a roadmap for assessing whether a harassment investigation is “appropriate in the circumstances.” It pointed out that the Ministry has published several materials on the workplace harassment and violence provisions of the OHSA that can be help assess whether an investigation is “appropriate in the circumstances.” This includes the Code of Practice to address workplace harassment (Code of Practice), which sets out, among other things, the minimum steps necessary to conduct an appropriate investigation.[6]

The Board tied the duty to investigate to the purpose of the OHSA’s workplace harassment provisions: protecting workers from harassment. Although the OHSA does not guarantee a harassment-free workplace, it does require employers to follow a fair process that allows them to determine whether workplace harassment occurred.[7]

The Board noted that an employer may use an internal or external investigator as long as they have some knowledge of the relevant OHSA provisions and the employer’s policies and “ideally some” investigations experience.[8]

The Board highlighted two procedural deficiencies with the County’s investigation:

1. Alyssa was not given an opportunity to respond to information the investigator had gathered from other sources. The Board noted that this is an important procedural step, especially where that information may influence findings.[9]
2. The investigator only interviewed one person, despite several people being identified in the complaint.[10]

The Board concluded that, absent any explanation for either deficiency, it could not be satisfied that the investigation was appropriate.

But the Board was careful not to create an unrealistic or rigid standard for investigators. Investigators need not interview every respondent or witness or investigate every allegation for the investigation to be appropriate. Investigators must retain flexibility to exercise judgment based on the facts of a particular investigation.[11]

Interestingly, the Board also suggested that, depending on the circumstances and with the clear consent of the parties, an appropriate investigation could include an informal process or mediation. A similar concept exists under the Canada Labour Code,[12] in which the resolution process for workplace harassment complaints (occurrences) includes multiple options for resolution: mandatory negotiated resolution, voluntary conciliation (a form of mediation), and investigation.[13] The Board’s comments are a useful reminder that investigations may not always the best or only response to a workplace complaint. Sometimes, early resolution may be faster, less disruptive, and more beneficial for both the parties and the workplace.

What this means for employers and investigators

The Gassi decision provides useful guidance on how to conduct procedurally fair workplace investigations. This includes considering whether:

• The investigation process aligns with the Code of Practice and related materials on workplace harassment.
• The investigator has sufficient knowledge of the OHSA and investigation principles.
• Decisions about which allegations to investigate and who to interview are both sound and explained.
• Each party been given a fair opportunity to respond to new information that may affect the outcome.
• Significant procedural decisions and conclusions are documented.

The purpose of the duty to investigate is to protect workers from harassment. Ultimately, the Board’s decision in Gassi underscores that an investigation that is “appropriate in the circumstances” must be one that allows the employer to fairly determine whether harassment has taken place.

---

[1] Alyssa Gassi v The Corporation of the County of Lambton, 2026 CanLII 64081 (ON LRB).

[2] While a first for the Board, the issue received some consideration in a grievance arbitration. See Toronto Metropolitan Faculty Association v Toronto Metropolitan University, 2024 CanLII 109523 (ON LA). The arbitrator determined that an investigation must be objective, impartial, and unbiased under section 32.0.7(1)(a) of the Act but did not conduct a substantive analysis of the procedural requirements that make an investigation “appropriate in the circumstances”.

[3] OHSA, s 32.0.7(1)(a).

[4] The Gassi decision also deals with a separate reprisal application brought under section 50 of the Occupational Health and Safety Act, which is not discussed here.

[5] Gassi, supra note 1 at paras 62-63.

[6] Ibid at para 83.

[7] Ibid at para 87.

[8] Ibid.

[9] The Board noted that the employer did not give Alyssa an opportunity to respond, nor an explanation for why there was no follow up meeting with her. See Gassi, supra note 1 at para 90.

[10] Gassi, supra note 1 at para 92.

[11] Ibid at para 91.

[12] Work Place Harassment and Violence Prevention Regulations (SOR/2020-130) in the Canada Labour Code (R.S.C., 1985, c. L-2).

[13] Ibid, ss 23-25.