In a recent decision from the Ontario Labour Relations Board, Alyssa Gassi v. The Corporation of the County of Lambton, 2026 CanLII 64081 (ON LRB), Arbitrator Peigi Ross concluded that a failure to provide the complainant an opportunity to reply to evidence that led her employer to dismiss her complaint, meant that the investigation was not “appropriate in the circumstances” under section 32.0.7 (1) (a) of the Occupational Health and Safety Act of Ontario. Remarkably, according to the arbitrator, this is the first decision of the Board to consider the scope of this key section of the Act, notwithstanding that it has been in place for almost 10 years.
The facts of the case are straightforward. Ms. Gassi, a lawyer, was an employee of the County, where she worked as a Municipal Prosecutor. She filed a complaint alleging that she was being harassed by various members of the court staff. The complaint was investigated internally by the County, and was ultimately not substantiated. Ms. Gassi took issue with the result and filed a complaint with the Ministry of Labour arguing that the investigation was “not appropriate in the circumstances” as required under the Act. An Inspector from the Ministry of Labour who responded to the complaint, declined to issue any orders in relation to it. Ms. Gassi then appealed to the Board.1
The evidence in front of the arbitrator was also straightforward. The investigation had been conducted by the County’s Senior Labour Relations Consultant, who had received workplace investigation training by Osgoode Hall. He met with the complainant for three hours to discuss her complaint. In that interview, he asked her questions about each person she named in her complaint. He also told her that the investigation would take a number of weeks, and that he would give her the opportunity to respond to the information he had uncovered.
After meeting with the complainant, the Consultant met with two County employees, one of whom was identified in Ms. Gassi’s complaint as a person whose behaviour had contributed to the harassment she alleged she had experienced, plus another person, the Manager of Court Services. As the Consultant explained to the Board, after meeting with this person, he concluded that there was no harassment or toxic work environment as defined by the County’s Workplace Harassment Policy. The Consultant ended the investigation, and communicated the results of it to the complainant, namely, that her concerns did not support the claims of workplace harassment and discrimination. Most crucial to this decision, was that the Consultant did not meet with the complainant after interviewing the two employees to give her an opportunity to respond to what he had heard from them.
The complainant argued that this last fact rendered the investigation unsupportable and also pointed to the fact that the Consultant had not met with the additional people identified in her complaint, and that the investigation had been completed too quickly.
In considering whether the investigation had been “appropriate in the circumstances,” the Board noted that what was relevant was to assess the procedural elements of the investigation, adding that, “the focus must be on whether the investigation was fairly and appropriately undertaken in a manner that would permit an employer to determine whether workplace harassment had occurred.” In undertaking this analysis, the Board cited with approval that the employer had taken the complaint seriously, and investigated it promptly, that the Consultant knew about the workplace harassment provisions under the Act, and had received information and instruction on the employer’s workplace harassment policy and program, that it had taken steps to maintain confidentiality to the extent possible, and that he had obtained an understanding of the complaint.
However, that the complainant was not given an opportunity to respond to the evidence obtained from the two County employees, was a problem, particularly because it led the Consultant to conclude that there was no harassment by the individuals identified in the complaint. As the Board, wrote:
It is possible that whatever information (the Consultant) learned from the (Manager) was determination of the issue, however, it is unclear how such a decision could be reached without giving Ms. Gassi the opportunity to respond. Again, I make no findings about the determination reached by (the Consultant) or whether his conclusion is right or wrong, but in the absence of speaking with at least some of the individuals named in the complaint other than the (Manager), and in the absence of giving Ms. Gassi the opportunity to respond, and in the absence of explaining these decisions in the course of the appeal, the Board cannot be satisfied that the investigation is appropriate in the circumstances in this case.
In our practice, we have often observed that investigators – both internal and external – interview the parties, the witnesses, and stop there. This decision highlights how important it is to conduct a reply interview of the complainant once the evidence is collected. During the reply interview, a complainant should be presented with any evidence that contradicts what they have previously provided to the investigator that the investigator intends to rely on, and offered an opportunity to respond. This includes evidence from the respondent and any witnesses interviewed, any new evidence uncovered that is relevant to the complainant’s allegations, and any relevant documentary evidence that the complainant has not seen or has not had an opportunity to comment on.
The evidence from the reply interview may not change the underlying facts established in the investigation. However, as the Gassi case tells us, providing a complainant with an opportunity to reply is a cornerstone of a fair process and absent this element, an investigation may not be appropriate in the circumstances.
1. The decision also deals with Ms. Gassi’s assertion that she was subject to a reprisal. That is not discussed in this blog.
