Step-by-step guide to conducting fair, well-documented harassment investigations in Ontario. Covers OHSA obligations, trauma-informed interviewing, credibility assessment, and the mistakes that undermine investigations.
It's 2 p.m. on a Tuesday. Your HR manager walks into your office with an email from an employee alleging that a supervisor made repeated inappropriate comments of a sexual nature. Your stomach drops. You think: Do I have to investigate? How do I do this without exposing the company to liability? Can I keep it quiet? How much is this going to cost?
If you're running a business with 20 to 500 employees in Ontario—what the industry calls SMB territory—you've likely asked yourself these questions. And you probably assumed the answer was either "hire a law firm" or "figure it out yourself and hope nothing goes wrong."
There's a third path: a rigorous, trauma-informed investigation process that protects your company and supports your employees, scoped and priced in writing before work begins. This guide walks you through it.
Key Takeaways
- Ontario employers have a legal duty to investigate harassment complaints under Section 32.0.7 of the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code
- Harassment includes sexual harassment, psychological harassment, and poisoned work environment — each has distinct legal thresholds and evidence standards
- The investigation process has eight distinct phases: intake, assessment, preservation, interviewing, analysis, findings, remediation, and follow-up
- Trauma-informed interviewing techniques improve disclosure, accuracy, and the reliability of the record — they're not soft; they're rigorous
- Credibility assessment in he-said/she-said cases uses the balance of probabilities standard, not "beyond reasonable doubt"
- Common mistakes (bias, poor documentation, retaliatory actions) can turn a sound investigation into a liability
- SMBs can do this right — structure and process matter more than budget size
Ontario has two main legal frameworks for harassment: the Occupational Health and Safety Act and the Ontario Human Rights Code. They overlap but aren't identical, and understanding the distinction matters.
The Occupational Health and Safety Act defines workplace harassment in section 1(1) as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome." The threshold is straightforward: it doesn't have to be intentional or malicious. If a reasonable person would understand the behavior is unwelcome, it qualifies.
The definition also specifically includes workplace sexual harassment — vexatious comment or conduct of a sexual nature, or a sexual solicitation or advance from someone in a position to grant or deny a benefit, that is known or ought reasonably to be known to be unwelcome. This was added by Bill 132 and reflects Ontario's specific concern with sexual misconduct in workplaces.
Key point: Under the OHSA, the question isn't "Did the person mean to harass?" It's "Would a reasonable person know this would be unwelcome?" This is a significantly lower bar than criminal intent.
The Ontario Human Rights Code defines harassment (s. 10(1)) as "engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome," and s. 5(2) gives every employee the right to freedom from harassment in the workplace based on the Code's protected grounds — race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, and disability. It includes specific protections against sexual harassment.
The key difference: the Human Rights Code ties harassment to a protected ground (disability, race, religion, etc.). You can have harassment under OHSA that isn't tied to a protected ground, and you can have conduct based on a protected ground that needs analysis under both frameworks.
The Ontario Human Rights Commission has published guidance stating that harassment need not be repeated to be actionable — a single egregious incident can constitute harassment. However, courts typically look at patterns of conduct. A single inappropriate remark, even if unwelcome, is less likely to be found as harassment than a pattern of similar behavior over time.
Considering external support? Review our employer-side Ontario workplace investigation fit and process. The page explains intake boundaries and acceptance gates; it does not make a legal determination about a particular complaint.
This is where many SMB owners feel exposed. You likely assume that if someone doesn't like how they're being treated, that's their problem to sort out. It's not. Ontario law imposes an affirmative duty on employers.
Section 32.0.7 of the OHSA requires an employer to ensure that an investigation "appropriate in the circumstances" is conducted into incidents and complaints of workplace harassment, and that the worker and the alleged harasser (if a worker of the employer) are informed in writing of the results and of any corrective action. This is mandatory. Not optional. Not "if you feel like it." If someone reports harassment, you must investigate.
The statute also requires employers to maintain a workplace harassment policy and program that includes procedures for reporting and investigating complaints. Bill 132 (2016) tightened these requirements, and in practice they mean employers must:
Note that last part: you must inform the complainant of the outcome while also maintaining confidentiality. It sounds contradictory. It's not — you tell them the findings (harassment found/not found, remediation implemented) without disclosing other employees' private information.
Ontario courts have also recognized employer obligations to maintain a safe workplace beyond the statute. If you know harassment is occurring and fail to act, that failure can ground civil liability — through constructive dismissal, aggravated or moral damages in a dismissal claim, or related causes of action — independent of any OHSA violation. The consistent judicial reasoning: an employer who becomes aware of harassment has a duty to take reasonable steps to stop it.
Here's the critical point: "investigate" has a specific legal meaning. It doesn't mean "hear both sides and make a quick decision." It means:
Skipping any of these steps doesn't just make your investigation look weak — it puts you in violation of the statute.
Harassment comes in distinct flavors. Each has different evidentiary standards and remedial approaches. Treating them as interchangeable is a common mistake.
Sexual harassment is conduct of a sexual nature that the person knows or ought to know is unwelcome. This includes:
Example scenario: A male supervisor sends a female subordinate a text message outside of work hours asking her to send a photo of herself in her work outfit. She doesn't respond. He sends follow-up messages over the next week asking again. She finally responds by asking him to stop. He stops, but the damage is done.
Legal standard: One egregious incident can be sexual harassment. A pattern of behavior is stronger evidence, but a single incident — especially involving unwanted touching or explicit sexual advances — often satisfies the threshold.
Psychological harassment (sometimes called hostile work environment or bullying) is repeated or continuous vexatious conduct that creates a poisoned work environment. It doesn't have to be sexual in nature. Examples:
Example scenario: A manager begins assigning a previously high-performing employee all the worst projects, strips them of their team lead responsibilities without explanation, and makes subtle comments in meetings about their competence. When the employee tries to discuss it, the manager says "performance is down, deal with it." Over three months, the employee's confidence erodes and they consider quitting.
Legal standard: Pattern is important here. A single incident of tough management, unclear communication, or even rudeness is usually not harassment. Repeated, continuous conduct that a reasonable person would find vexatious — that rises to harassment.
A poisoned work environment isn't tied to conduct directed at one person — it's a culture of unacceptable behavior. Examples:
Example scenario: In a software development team, a subset of engineers regularly make crude sexual jokes during standup meetings. One engineer, a woman and the only woman on the team, has asked them to stop twice. They continue. Management hears about it but treats it as "just the culture of the tech team." No action is taken.
Legal standard: The conduct needs to be pervasive and severe enough that a reasonable person would find the work environment hostile or intimidating. Courts have been increasingly willing to find poisoned environment claims valid over the last 10 years.
An investigation is a structured, methodical process. It's not a conversation. It's not a meeting. It's a documented inquiry with a clear methodology.
When a harassment complaint arrives — by email, in person, or through an HR system — your first step is intake.
Document everything immediately. Write down:
Then assess the complaint's severity and urgency. Ask yourself:
If the allegation is of a serious nature (physical assault, threat, pervasive sexual harassment), you may need to place the respondent on immediate paid leave or reassign them to avoid contact with the complainant. This isn't punishment — it's interim protection. You haven't made a finding yet.
At this point, you need to decide: Can we investigate this internally, or do we need outside help?
Investigate internally if:
Bring in external investigators if:
Many SMBs attempt internal investigations and bungle them because they don't have trained investigators. Even a well-intentioned HR manager can inadvertently introduce bias, miss key evidence, or fail to follow trauma-informed practices. The cost of getting it wrong (settlement, termination of a wrongful dismissal claim) far exceeds the cost of hiring external help upfront. We'll discuss this more at the end.
Before you start interviewing, preserve evidence. This includes:
Also implement interim measures to protect the complainant and prevent retaliation:
This is where most investigations fail. The interview phase is where you gather the facts, but it's also where you can retraumatize the complainant, miss key information, or inadvertently signal bias.
Start with the complainant. In almost all cases, interview the respondent only after you have the complainant's full account.
Preparation before the interview:
During the interview (trauma-informed approach):
Ask open-ended questions first. Start with "Can you walk me through what happened?" rather than "On March 5th at 2 p.m., did the respondent say X?" Open-ended questions allow the complainant to provide their full narrative without leading questions that might unconsciously constrain their response.
Use active listening. Reflect back what you're hearing: "So what you're saying is that the comments made you feel uncomfortable in team meetings. Is that right?" This confirms you understand and signals you're taking them seriously.
Avoid minimizing language. Don't say "Some people might find that funny" or "That's not so bad." The question isn't whether you'd find it acceptable — it's whether a reasonable person would find it unwelcome.
Pace the interview. If the complainant becomes emotional, pause. Offer water, a tissue, time to compose themselves. Don't rush through emotional moments; they're often when important details emerge.
Ask clarifying questions, not leading questions. Bad: "The respondent was clearly being inappropriate, wasn't he?" Good: "How did you interpret that comment at the time?"
Document the interview. Take detailed notes of what the complainant says, including direct quotes where possible. Ask permission to record the interview (audio only, not video) if you're concerned about accurate transcription.
After the complainant interview:
Interview witnesses next. For each witness, ask:
Keep witness interviews focused and brief. They're not parties to the complaint; they're sources of information.
Interview the respondent last. By this point, you've gathered the complainant's account and witness corroboration. The respondent has the right to respond to specific allegations. Provide them with:
During the respondent interview, ask:
Document the respondent's account in detail, including direct quotes.
Now you have all the information. Time to assess what actually happened.
Apply the balance of probabilities standard. This is the legal test for harassment cases. It's not "beyond a reasonable doubt" (that's criminal court). It's: "Is it more likely than not that the alleged conduct occurred?"
In a he-said/she-said situation:
Document your reasoning. Don't just say "We found harassment occurred." Say:
If you find harassment occurred:
If you find harassment did not occur:
The investigation doesn't end with the final report. Harassment findings require active follow-up.
At this point, you might be thinking: "Why does it matter if I use trauma-informed techniques? As long as I get the facts, isn't that enough?"
No. Here's why:
First, trauma-informed techniques improve information gathering. Harassment is traumatic. When someone is traumatized, their brain processes information differently. They may have fragmented memories, difficulty with timelines, or emotional responses that seem disproportionate to observers. An investigator trained in trauma response can ask questions in ways that help the person access accurate memories rather than triggering defensive or fragmented responses.
Second, trauma-informed practices reduce secondary victimization. When an investigation retraumatizes a complainant — by making them relive the experience in an unsympathetic setting, or by seeming to blame them — they often withdraw, become less detailed, and may even recant. This doesn't mean they were lying; it means they couldn't manage the emotional weight of the process.
Third, trauma-informed investigations hold together better on review. Courts increasingly recognize that how you conduct an investigation matters. An investigation that appears to minimize, blame, or revictimize the complainant can be challenged as biased. An investigation that demonstrates awareness of trauma dynamics and care in the process is harder to attack.
Fourth, trauma-informed practices reduce liability. If the complainant later claims they were not supported during the investigation, or that the process itself was traumatic, you're protected if you can demonstrate that you used recognized best practices.
Key trauma-informed principles:
Most harassment allegations don't have clear video evidence or a roomful of witnesses. You're left comparing the complainant's account with the respondent's. How do you decide who to believe?
The legal standard is balance of probabilities: Is the complainant's account more likely true than the respondent's? If so, you've met the threshold.
Credibility factors courts consider:
| Factor | What This Means |
|---|---|
| Consistency | Does the person's account remain consistent over multiple tellings, or do key details shift? Internal inconsistencies suggest unreliability. |
| Corroboration | Are there emails, messages, witnesses, or other evidence that support the person's account? |
| Motive to fabricate | Does the person have a reason to lie? (Revenge, protecting themselves, gaining advantage) Consider whether the motive is compelling enough to override other credibility factors. |
| Evasiveness | Does the person directly answer questions, or do they dodge, minimize, or provide non-responsive answers? |
| Demeanor | (Use cautiously) Does the person maintain composure, or do they become defensive or aggressive? Remember: some people are emotional under stress; others are stone-faced. Don't over-weight this. |
| Level of detail | Does the account include specific, verifiable details (dates, locations, dialogue), or is it vague? Vague accounts raise questions. |
| Admission of memory gaps | Does the person admit when they don't remember something, or do they fabricate details? Admitting gaps is credible; fabricating is not. |
Important caveat: Trauma affects memory and presentation. A complainant who has been traumatized might have fragmented memories, struggle with timeline details, or become emotional during recounting. These are signs of trauma, not dishonesty. Conversely, a respondent might be calm and consistent because they've had time to craft a story. Don't equate composure with truth-telling.
Common credibility errors to avoid:
Assuming the respondent is more credible because they're calm. Accused people often prepare their defense carefully. Traumatized complainants are often dysregulated.
Discounting a complainant because they have a motive. Yes, a complainant might want the respondent fired. That doesn't mean they're lying; it means they were harassed and want it to stop.
Treating a single inconsistency as fatal to credibility. People misremember dates, conflate similar events, or recall details differently under stress. A person can be materially truthful while getting peripheral details wrong.
Over-relying on witness accounts. Witnesses often didn't see or hear the full interaction. A witness saying "I didn't hear him say that" doesn't mean he didn't say it in a private moment.
Assuming a pattern of prior complaints proves current guilt. If the respondent has been complained about before, it raises concerns. But each case stands on its own facts. The prior complaint is relevant context, not proof.
The balance of probabilities in practice:
You don't need 100% certainty. You need to be more than 50% confident. Consider this scenario — an illustrative composite, not a single client matter — where a female manager alleges that a male peer made unwanted comments about her appearance and that she'd asked him to stop:
Conclusion: Balance of probabilities favors the complainant. There is no absolute proof. But the email, witness corroboration, and pattern of similar behavior make it more likely than not that the comments occurred as alleged. That meets the threshold.
Here are the mistakes I see repeatedly that turn a routine investigation into a liability:
The investigator has a prior relationship with one party, or a stake in the outcome. A manager investigates a complaint against their peer and clears them without rigorous questioning. A CEO investigates a complaint against a close friend. These investigations are biased on their face.
Prevention: If the investigator has any conflict of interest — personal relationship, reporting relationship, stake in the outcome — bring in someone external. The appearance of fairness matters as much as fairness itself.
The investigator conducts interviews and takes no notes, or only summary notes of their own interpretation. Later, they can't recall exactly what was said. The investigation file contains the final report but no detail of what was actually discussed.
Prevention: Document every interview in detail. Include direct quotes where possible. Note who was present, when the interview occurred, and how long it lasted. Use contemporaneous notes, not recollection after the fact. Consider recording interviews (audio only) with permission.
The investigator interviews the complainant and respondent but skips potential witnesses because "they might not have seen anything." This is lazy and dangerous. A witness might corroborate the complainant, provide context, or reveal a pattern.
Prevention: Ask the complainant and respondent to identify anyone who might have relevant information. Interview all credible witnesses, even if their information seems peripheral.
You interview the complainant, who identifies a witness. You call the respondent to interview them and mention the witness by name. The respondent now has time to contact or influence the witness before you do.
Prevention: Interview witnesses before giving the respondent notice of who they are. This isn't cloak-and-dagger; it's basic investigative protocol.
You investigate and conclude harassment occurred. You immediately fire the person. Later, the respondent sues for wrongful dismissal, claiming the investigation was a sham designed to justify a predetermined outcome.
Prevention: Investigation and discipline are separate. Investigate with an open mind. Once you have findings, then decide on discipline. Document that you considered progressive discipline options and that the severity of the harassment warranted termination (or whatever discipline you chose).
You finish the investigation and write a one-page report: "We investigated and found harassment did occur." That's not enough. Why did you reach that conclusion? What credibility factors led you to believe the complainant over the respondent? What evidence supported your finding?
Prevention: Document your reasoning in detail. Explain how you applied the balance of probabilities standard. Describe the credibility factors that influenced your conclusion. This is your defense if the investigation is later challenged.
The complainant reports harassment. Six weeks later, they're excluded from a project, their hours are cut, or they're assigned to a less desirable role. Retaliation is illegal under Ontario's OHSA and Human Rights Code.
Prevention: After the investigation, restore the complainant to their original position or to a position they prefer. Don't punish them for coming forward. Monitor for retaliation during follow-up.
You tell the complainant: "We spoke to the respondent, and he says he was just joking and didn't mean anything by it." You've now exposed the respondent's defense to the complainant, who might tell others or coach witnesses.
Prevention: Tell the complainant the findings and what you're doing about it. Don't disclose the respondent's specific statements or defense. You can say "We spoke to the respondent, who provided a different account of the interaction," but don't detail their response.
An investigation that ends with findings is incomplete. You need active remediation and follow-up.
Immediate post-investigation steps:
Communicate findings to the complainant. Explain what you found, why you reached that conclusion, and what steps you're taking. Be direct: "We found that the comments made to you were inappropriate and unwelcome. This is workplace harassment. We are taking the following steps to address it."
Implement interim measures into permanent remediation. If the complainant was moved to a different team during the investigation, decide whether they return to their original role. If the respondent was suspended, decide whether they're terminated, demoted, suspended with conditions, or restored with restrictions.
Communicate discipline to the respondent. Explain the findings, why you reached them, and what discipline is imposed. Be clear: "The investigation found that you engaged in harassment. As a result, you are being terminated." Don't soften it with "We're letting you go" language that obscures the reason.
Brief relevant managers. If a supervisor engaged in harassment, brief all staff they manage about the investigation outcome (without revealing confidential details) and what behavior is expected going forward.
Implement preventive measures. If the investigation revealed patterns of harassment or cultural problems, implement training, policy changes, or other preventive measures.
Ongoing follow-up:
I'm going to be direct here: not every harassment investigation requires a lawyer. But some do. Know the difference.
You likely need external legal counsel if:
You can likely investigate internally if:
The cost calculus: External investigation fees are quoted after intake, based on the number of parties, evidence volume, urgency, and reporting scope — you receive a written fee and scope before work begins. A wrongful dismissal settlement or regulatory penalty for a botched investigation routinely dwarfs that fee. The math is clear: if there's material risk, external help is cheaper than the alternative.
Q: Can I keep a harassment complaint confidential and not investigate?
A: No. Section 32.0.7 of the OHSA requires you to investigate. You have a legal duty. If you don't investigate and the harassment continues, you're liable for failing to meet your statutory obligation.
Q: What if the complainant asks me not to investigate?
A: You still have to investigate, but you can accommodate their concerns. You might investigate without naming them as the complainant (report it as an anonymous complaint you received), or you might investigate in a way that limits their involvement (focus on witnesses and documents). You can't ignore it.
Q: Can I fire someone for a single incident of harassment?
A: Yes, if the conduct is severe enough. Termination without notice is justified for serious misconduct, including serious harassment (sexual assault, explicit threats, egregious sexual harassment). For less severe harassment, progressive discipline (suspension, written warning, mandatory training) is more standard. But you can terminate if the conduct warrants it.
Q: What if the respondent denies everything?
A: That's common. Your job is to assess credibility and decide whether the balance of probabilities supports the complainant's account. Denial alone doesn't prove innocence; corroboration alone doesn't prove guilt. Weigh all the evidence.
Q: Can I discuss the investigation with other employees?
A: Only on a need-to-know basis and only to the extent necessary. If you're interviewing a witness, explain why the investigation is happening and that confidentiality is required. You should brief relevant managers that an investigation occurred (without detailing allegations) and remind them of the company's anti-harassment policy. Don't gossip about the investigation.
Q: What if the respondent is a customer or contractor, not an employee?
A: Different rules may apply, and your contractual relationships matter. An independent contractor who harasses your employee could breach their contract. A customer who harasses staff might need to be told their behavior is unacceptable or they'll lose business. Consult counsel on these situations, as they're often more complex.
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We reply to enquiries within one business day. A matter is accepted only after fit, conflicts, jurisdiction, the proposed practitioner's authorization and insurance, and capacity are confirmed. If accepted, the written scope identifies the proposed practitioner, role, method, reporting responsibility, timing, and fee. The enquiry itself does not promise a call, proposal, start date, or mandate. 1205 is not a law firm and does not provide legal advice.
This guide reflects Ontario law at time of publication. Labor law evolves. If your situation involves federal jurisdiction or recent legal changes, consult counsel. This is guidance, not legal advice.
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