"Appropriate in the Circumstances": The Standard Ontario Employers Keep Failing

On May 21, 2026, the Ontario Municipal Human Resources Association (OMHRA) published a clarifying article by Joy L. Hulton of Hulton Workplace Resolutions on the meaning of "appropriate in the circumstances" under section 32.0.7 of Ontario's Occupational Health and Safety Act. The piece is short, practical, and rooted in the Divisional Court's reasoning in Metrolinx v. Amalgamated Transit Union, Local 1587.

It is also a quiet indictment of how Ontario employers continue to handle harassment complaints.

The phrase "appropriate in the circumstances" sits in the OHSA without elaboration. The Ministry of Labour's Code of Practice to Address Workplace Harassment gives some texture. The courts and the OLRB have given more. But the operational gap between what employers think the standard requires and what the standard actually requires is widening — and the cost of that gap has just been re-anchored by the OLRB's $200K remedy in Braganza v. Randstad Canada and the Ontario Superior Court's $137K judgment in N.M. v. C.T..

This post translates the Hulton framework into the operational standard 1205 applies on every Ontario workplace investigation engagement — and flags the four places we keep finding Ontario employers under-calibrated.

Key Takeaways

• "Appropriate in the circumstances" is a proportionality standard, not a permission to do less. Minor matters get a threshold assessment; serious matters get a formal investigation.
• The duty arises when the employer learns of conduct that may constitute harassment — formal complaint, anonymous tip, management observation, off-duty conduct with workplace impact, all of it counts.
• Most Ontario employer failures we see are not failures of investigation. They are failures of threshold assessment — the documented decision about what response the matter warranted in the first place.
• The bar for using an internal investigator is rising. Where the respondent is senior, the allegations are serious, or the complainant is a regulated professional, external is now the defensible default.

What the standard actually requires

Hulton's framing of section 32.0.7, drawing on the Ministry of Labour's Code of Practice, lists four operational elements every investigation needs to satisfy:

1. Timeliness. Investigations must begin promptly and ordinarily complete within 90 days, absent compelling reason for delay.
2. Objectivity. The investigator must be independent and impartial — not involved in the allegations, not reporting directly to the alleged harasser.
3. Confidentiality. Information is disclosed only as necessary to investigate, act, or comply with legal obligations.
4. Thoroughness. Interviews of complainant(s), respondent(s), and relevant witnesses; collection of emails, messages, and records; detailed contemporaneous notes throughout.

None of this is new. What is new — and what Hulton makes explicit — is the threshold-assessment obligation that sits in front of any of it. Before the investigation question, there is a logically prior question: what response does this matter warrant in the first place?

The threshold assessment is where most failures happen

When 1205 is brought in after the fact — most often by counsel for an employer facing a complaint at the OLRB, the HRTO, or the Ministry of Labour — the procedural failure is rarely in the investigation itself. The investigation file usually shows interviews, notes, a report. The procedural failure is in the decision that preceded the investigation: the moment a supervisor, a manager, or HR became aware of conduct that may constitute harassment, and chose a response without documenting why.

A threshold assessment answers four questions, in writing, contemporaneously:

1. What did the employer learn, when, and from whom? A specific written record — not a reconstructed timeline drafted weeks later when counsel asks for one.
2. If the allegation is true, would the conduct breach the OHSA, the Human Rights Code, or our internal policy? If yes, an investigation of some form must proceed. The complainant's reluctance to participate does not change this.
3. What is the proportionate response? Preliminary assessment, streamlined internal investigation, formal internal investigation, or external investigation. The Hulton framework — and Metrolinx — both treat this as a serious, fact-specific call.
4. Who can credibly do the work? Anyone who reports to the respondent, is in the respondent's chain of command, or has a personal relationship that compromises objectivity is disqualified before the work begins.

The point of writing this down is not bureaucracy. It is that under Metrolinx v. ATU Local 1587, the Ministry of Labour Code of Practice, and the OLRB's recent reprisal jurisprudence, the threshold assessment is the document that determines whether the employer is judged to have responded reasonably — or to have looked away.

The investigation file proves what was investigated. The threshold assessment proves that the right thing was investigated, by the right person, on the right timeline.

Why this matters more after Metrolinx

The Ontario Court of Appeal's decision in Metrolinx did three things to the duty to investigate that materially affect the threshold-assessment calculus.

First, it confirmed that the duty arises with or without a formal complaint. Anonymous tips, screenshots forwarded to HR, a manager's direct observation of a private WhatsApp thread — any of it can trigger the duty if it suggests conduct that may constitute workplace harassment. The threshold assessment is what the employer uses to demonstrate that the trigger was recognized.

Second, it extended the duty to off-duty conduct where the conduct has a real and demonstrable impact on the workplace. The threshold question is no longer "did this happen at work?" The threshold question is "is there workplace impact?" That call requires a documented threshold assessment.

Third, it confirmed that the duty is owed not just to the complainant but to the workforce. An employer cannot decline to investigate because the complainant asks them not to. The threshold assessment is what the employer uses to demonstrate the broader duty was recognized — and acted on.

The cost of getting this wrong is no longer abstract. The OLRB's May 22, 2026 Braganza v. Randstad Canada remedy decision ordered nearly $200,000 in damages against an employer whose post-complaint procedural pattern unravelled in front of the Board. The Ontario Superior Court's $137K judgment in N.M. v. C.T. is a separate path to a similar number. Both files would have looked materially different at trial with a contemporaneous threshold assessment in place.

The four places we keep finding Ontario employers under-calibrated

Patterns we see, in roughly descending order of frequency:

1. No threshold assessment exists. The employer began an investigation — or began something they called an investigation — but cannot produce a written record of the threshold decision. The result is that every choice downstream (who investigated, what scope, what timeline, what corrective action) becomes vulnerable to second-guessing in front of the OLRB or the HRTO.

2. The investigator was not independent. An HR Director investigates a complaint against a peer, an executive, or a board member. A manager investigates a complaint against their own direct report. The investigator is technically not implicated — but is structurally not impartial. The investigation is then admissible only as a record of what the employer thought happened, not as a record of what did happen.

3. The "appropriate in the circumstances" judgment got compressed into "the cheapest available response." A serious sexual harassment complaint received a one-week internal HR conversation. A pattern of bullying allegations from multiple complainants received a fifteen-minute manager check-in. The proportionality calculus collapsed under cost pressure — and the file cannot survive an OLRB challenge.

4. The complainant's reluctance was treated as a stop signal. A worker raised a concern, asked HR not to pursue it, and the employer accepted that as authorization to stop. Under Metrolinx and Hulton's framing, that is the opposite of the right answer. The duty is owed to the workforce, not only to the complainant who reported.

These are the patterns. The fix is not more investigations. The fix is a more rigorous threshold assessment in front of every investigation — and the discipline to move to an external investigator the moment the matter clears the threshold for one.

What to do this quarter

For Ontario employers — particularly mid-market organizations between 50 and 500 employees, where HR teams are stretched and most investigations get triaged inside the function:

• Build a written threshold-assessment template. Three pages. The four questions above. Used every time a potential harassment concern surfaces. Stored in the same file the investigation report will live in.
• Re-audit your last twelve months of harassment files. Look for the files that started without a threshold assessment, that used an investigator who reported to the respondent, or that closed without a corrective action record. Those are the files that hurt in front of the OLRB.
• Set an internal trigger for external investigation. Default examples: respondent at VP level or above, allegation of sexual misconduct or assault, allegation against a regulated professional, more than three complainants, complainant on a medical leave related to the conduct. Below the trigger, internal can work — with the right investigator. Above it, external is the only defensible call.
• Train your supervisors on the threshold question, not the investigation process. Most supervisors never run an investigation. All of them have to recognize when one is required. The training that matters is the one that gets them to escalate the right matters at the right time, with a written record of what they knew when.

These are operational fixes — not legal advice. As always, the specific call on whether to investigate, who should investigate, and what corrective action to take should run through your employment counsel.

How 1205 helps

We run independent workplace investigations across Ontario, with a focus on harassment, discrimination, and serious misconduct files where the procedural bar is highest. Where we are brought in, the threshold-assessment record gets built from the first call. Where we are brought in late, we work with employer counsel to reconstruct the procedural record and to design the corrective action that closes the file properly.

If you are managing a current matter and the path from "we became aware" to "we acted" is not yet documented — or if your last twelve months of files do not include written threshold assessments — that is the right reason to book a 30-minute consultation with us.

Or if your team is reviewing whether the matter on your desk this week warrants an external investigator, the investigation assessment is a faster path to a defensible answer than the third internal Slack thread on it.

Either way, the move that matters is the threshold assessment — and the discipline to make it count.

Learn more about our workplace investigations practice or our HR Services offering for ongoing HR partnerships.