Canadian Lawyer InHouse

45 CANADIANLAWYERMAG.COM/INHOUSE SEPTEMBER/OCTOBER 2018 It's the investigation stage that often proves most challenging for companies, lawyers say. Under Ontario's OHSA, for example, employers who receive a harassment com - plaint must conduct an investigation that is "appropriate in the circumstances," which lawyers note is vague and open to second guessing. The person who complains of ha - rassment must also be informed in writing about the results and any corrective action that has been ordered. The first step is determining who should investigate a complaint. Should it be con - ducted internally or externally by an inde- pendent third party? "There is no bright line in the sand," says Reesor. It's a case-by-case decision. Dockendorff adds that "there is a lot of subtlety that goes into some of this." Generally, the more senior the alleged perpetrator, the more likely it is that you will need to use an external investigator. For internal investigations, in-house counsel need to ensure that "people are suf - ficiently trained to conduct the investiga- tions," says Reesor. Protecting confidentiality is also a must under privacy laws. Rudner warns that "organizations get into trouble when they try to do it [investiga - tions] themselves or do it in a less costly way. "The investigation has got to be done properly. Things are going to be scrutinized by the courts and perhaps even the media." Also, under Ontario's OHSA, the ministry of labour can order a company to conduct an investigation by an impartial person at the employer's expense, so if an investigation isn't done properly, the ministry can step in, Rudner explains. Between Sept. 8, 2016 and June 25, 2018, MOL had issued 12 orders to 10 employers, according to ministry statistics. Phillips adds that employers often get tripped up by not establishing proper terms of reference for an investigation. The re - sult is that it grows and drags, leaving both the complainant and respondent dangling, which creates ill will in the workplace. Re- porting back to the parties on the outcome is also essential. Phillips warns that "there is a wide variation in the experience and qual- ity of investigators." She is exploring with her union clients about creating a standard terms of reference or investigation protocol for sexual harassment that can be negotiated into collective agreements. Dockendorff says the bottom line is that employers "can't turn a blind eye" to com - plaints or allegations. The investigation and report has to be "well articulated and thought out." She notes that it's a fine "balancing act" between the complainant's and respon - dent's rights. Despite the intense scrutiny companies face on sexual harassment and the challeng- es in-house counsel must navigate, Fredeen thinks the #MeToo movement "will lead to more inclusive workplaces. It will lead to employers being more aggressive around creating a more inclusive workplace." IH 24 HOUR 416.420.0738 At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent painful headaches tomorrow. From human rights to health and safety, and everything in between… If you're an employer, we're the only call you need to make. RANKED sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz We're the apple a day. ntitled-20 1 2018-08-15 4:35 PM

• Cover