A1. Confidentiality: All persons involved with a harassment/discrimination complaint, including complainants, respondents, support persons, witnesses, management, union/association representatives and investigators are expected to treat the matter as confidential. Persons involved with a harassment/discrimination complaint may be required to sign a confidentiality agreement.
During an investigation, identifying information about any individuals should not be disclosed unless the disclosure is necessary for the purpose of investigating, taking corrective action or is otherwise required by law. Parties to a complaint must not advise anyone in the workplace or otherwise connected to the workplace and/or service provision about the investigation, any involvement in the investigation and/or the contents of an investigation interview and/or report. Parties are not to ask individuals if they have participated in an investigation process or discuss any details about any investigation interviews.
Employees may be disciplined if confidentiality is breached by communicating with any person other than their union representative, health care practitioner or another legal authority at any time before, during or after an investigation or resolution of a harassment/discrimination complaint. Managers and supervisors are required to keep information as confidential as possible when addressing human rights concerns and are also subject to discipline for breaches of confidentiality.
Under the Occupational Health and Safety Act (OHSA), complaint details, investigations, and results/reports produced under the HRAP are not considered to be occupational health and safety reports that are shared with joint health and safety committees. Therefore, to protect confidentiality, these documents are not to be shared with joint health and safety committees.
Subject to the requirements of procedural fairness of the investigation/resolution process, the investigator will preserve confidentiality as much as possible, or as legally required or permitted - see below for when exceptions may be made to the disclosure of confidential information. Consult the HRO for additional details regarding confidentiality exceptions.
A2. Confidentiality Exceptions: The HRO is committed to protecting the confidentiality of its consultations, investigations and related records. Where an individual/group who has consulted the HRO or been involved in an HRO complaint engages another legal proceeding related to the subject matter of the HRO consultation/complaint, upon receipt of the legal proceeding documentation (e.g, grievance, WSIB report, etc.) and request from the City's Legal Services Division and/or Human Resources Division, the HRO will determine whether it is appropriate to:
- Confirm or deny whether it was consulted
- Respond to specific questions regarding the consultation for the purpose of responding to the legal proceeding
- Provide a brief summary of the nature of the consultation
In cases in which an HRTO application is filed by an individual/group who has consulted the HRO on the same and/or related matter, the HRO will, upon receipt of the application and a request from the Legal Services Division, provide a copy of its file to the Legal Services Division. Where the entire contents of a HRO file is required related to any other legal proceeding, the HRO may determine whether consent of the employee involved or an order of the court/tribunal/arbitrator or other adjudicative body is required prior to disclosing its file or providing any information beyond that outlined above.
A3. Complaint/Incident Source: Complaints about a contravention of the HRAP will be accepted from any source that provides reasonable grounds upon which to initiate an intervention. Complaint/incident sources may include the individual who was the subject of the action complained about, an involved person or group, a witness or other third parties.
All persons who believe that they have experienced or witnessed harassment and/or discrimination should keep detailed notes about the issue(s) and preserve all relevant documentary or electronic records.
Where deemed necessary, complainants will be required to provide a written account of their concerns. Where necessary and appropriate, the HRO may assist in drafting the complaint. The HRO may also initiate a formal complaint if it has information that suggests the existence of an outstanding specific or systemic problem.
A4. Time Limits: The time limit for the filing complaints under the HRAP is one year from the date of the last incident of alleged discrimination or harassment.
A5. Notification of complaint: Typically, respondents will be advised that a complaint has been filed as soon as practicable. In certain circumstances, the respondent may not be advised of the complaint. Such circumstances include where the complaint does not warrant exploration, where the complaint is outside the HRAP mandate or where an issue can be resolved through a remedy such as training.
A6. Complaint Records: Any record of a complaint and all related documentation will be handled confidentially and stored in a secure location separate from employee personnel files. Records of a complaint will only be placed on an employee’s personnel file when they have been found to have engaged in conduct contrary to the HRAP and/or corrective action is taken. This record of discipline is subject to the provisions of any applicable collective agreement.
A7. Range of Resolution Options: Several options to resolve harassment and discrimination concerns are available for complainants. Informal approaches can foster prompt resolution and prevent escalation; particularly when concerns are raised promptly. These are opportunities for parties to resolve a dispute, ensure the workplace is free from harassment and discrimination and address broader issues that caused or contributed to the dispute.
A7.1. Consultation - Advice & Assistance:
Complainants may benefit from having expert information and advice before deciding how to proceed with a discrimination or harassment concern. Complainants can consult management staff, Human Resources Division staff or HRO staff. These staff all have a responsibility to take action to resolve and prevent harassment and discrimination – refer to section 3.0 of the HRAP, Roles and Responsibilities – and can provide advice, assistance, coaching, and referrals to assist complainants in addressing harassment or discrimination themselves. Employees may also consult their union or staff association.
Service or facility users should contact the relevant supervisor or manager as soon as practicable to resolve the issue and may contact the HRO at any time for confidential advice.
A7.2. Talking to the person about their conduct:
All complainants must make good faith efforts to attempt to resolve matters themselves before filing a complaint. If a complainant feels they are experiencing harassment or discrimination, the complainant should immediately make known to the person responsible that the conduct is unwelcome or offensive and may be in breach of the HRAP. It is important that this message be clear and unambiguous. When presented with a legitimate breach of the HRAP, all employees, including management staff are expected to make reasonable adjustments to their behaviour to resolve the matter. If addressing the person responsible could lead to safety risks, or is not appropriate, complainants may pursue other resolution options outlined in these procedures.
A7.3. Interventions by other staff:
If a complainant is unable to resolve the issue themselves or the discrimination or harassment continues after asking the person to stop, the complainant may request management or the HRO to intervene to facilitate resolution.
Employees should complete a Workplace Harassment/Discrimination complaint form. See A10.4 for details to include. Where an incident/concern/complaint involves the employee's superior, the employee may raise the concern with that person's supervisor/manager or to the HRO.
Interventions by divisional management: where an employee raises an incident or complaint to management, consult the The Manager's Guide to Addressing Employee Harassment and Discrimination Complaints & Incidents (the link can only be accessed by City employees from the Intranet). On receipt of the complaint form, managers should notify the complainant within 10 business days whether or not it has been determined that an investigation is required or another dispute resolution option is appropriate, or provide information regarding anticipated next steps.
For all incidents and complaints, including from service or facility users, management will assess the complaint and determine if an investigation is required or other dispute resolution option is appropriate, HRO may be contacted to provide advice to management on resolving the complaint.
Interventions by HRO: HRO staff will determine in consultation with a complainant whether the concern(s) can be referred to division management to allow an opportunity to resolve the matter. HRO staff can advise parties where there are concerns about real or perceived bias, fairness, etc., when management is exploring concerns. Consult the HRO for details.
Intervention options by management or HRO may include:
- A more in-depth examination and/or investigation* of the concerns and allegations; consulting, advising, meeting with and/or interviewing management, the respondent, witnesses, Human Resources staff etc.
- A review of documentary evidence, e.g., email messages
- Where appropriate, an option by parties to participate in mediation or to have a facilitated negotiation to resolve the issues
- A communication in writing to the complainant(s) and respondent(s) advising whether allegations were fully, partially or not substantiated and confirmation where necessary, of corrective actions that will be undertaken to resolve and remedy policy breaches
*The OHSA requires an investigation be conducted into all employee complaints/incidents of non-Code workplace harassment, sexual harassment, gender identity harassment, gender expression harassment and sexual orientation harassment - Refer to the Manager's Guide (the link can only be accessed by City employees from the Intranet)
A8. Mediation: Where appropriate, the HRO may offer to mediate the complaint at any point before, during or after an investigation. Mediation for workplace harassment complaints can only occur after an investigation has occurred. Participation in mediation is voluntary and either party to the mediation is entitled to have a "support person" (as defined in section A.11 below) attend the mediation. Where the mediator is of the opinion that the presence of the support person selected is inappropriate or that it may or is hindering the mediation process, the mediator will advise the relevant party who shall be entitled to select another support person provided that doing so does not hinder or unduly delay the mediation.
The purpose of the support person is simply to be present to support the complainant or respondent. They are not permitted to participate in any way. As this complaints procedures is a mechanism for alternative dispute resolution, parties are not entitled to select legal counsel to fulfill the role of support person.
All mediation discussions will be held on a confidential, without prejudice basis. Any settlement would have to be satisfactory to both parties, be consistent with the HRAP and approved by senior division management where appropriate. Parties will be required to sign confidential Minutes of Settlement.
A9. Investigations: Investigations, both informal and formal, conducted by divisional management or the HRO will include a comprehensive and impartial review of all relevant information, (e.g. the respondent’s position/response, witness information, documentary evidence, etc.). The HRO has the authority to explore whether broader issues contributed to the complaint. The investigator has the authority to speak with anyone, examine and copy any documents, records, files and enter any work locations which are relevant to the complaint.
Divisional management: on receipt of a complaint/incident should complete the Management Assessment Form.
A10. Formal Complaints and Investigations: If the informal approaches are not effective or appropriate to resolve a situation, or the complaint is of a serious or systemic nature, a formal complaint and investigation may be necessary.
A10.1. All formal complaints will be referred to the HRO for mediation and/or investigation.
A10.2. HRO staff will assess whether a formal complaint is the only appropriate way to address the concern.
A10.3. Formal complaints must be in writing and signed by the complainant using the HRO confidential online complaint form. Where necessary and appropriate, the HRO may assist in drafting the formal complaint.
A10.4. Where possible the following details should be included in the complaint:
- what happened – a description of the events or situation, particularly specific details of what the respondent said or did that the complainant believes could be considered harassment or discrimination.
- The Human Rights Code (Code) ground if applicable
- When it happened – dates and times of the events of incidents
- Where it happened
- Who saw it happen – the names of witnesses, if any
A10.5. The responsible division head and Deputy City Manager or City Manager as applicable will be notified of a formal complaint as soon as it is initiated by the HRO.
A10.6. Respondents to a complaint will be notified as soon as practicable during the investigation process.
A10.7. The HRO will determine in consultation with others as necessary and on a case-by-case basis, whether the complainant or respondent should be relocated within the division, provided with an alternate reporting relationship, or placed on a paid leave during an investigation.
A10.8. HRO staff will conduct a thorough, fair investigation, including interviewing the complainant(s), respondent(s) and witnesses, gathering and reviewing documentary evidence, and exploring whether broader issues contributed to the complaint.
A10.9. At the conclusion of an investigation, the investigator will prepare a written report that includes the allegations, respondent’s position, witness and documentary evidence, factual findings, conclusions and discussion about policy violation(s).
A10.10. Findings will be provided to the Deputy City Manager or City Manager as applicable, division head, the complainant(s) and respondent(s).
A10.11. The parties will be given an opportunity to submit comments before a final decision is made to resolve the complaint.
A10.12. The HRO will make recommendations to correct any existing problems and/or to prevent similar problems from occurring in the future.
A10.13. Final decisions regarding corrective actions/the disposition of a complaint will be made by the responsible Deputy City Manager or City Manager as applicable and communicated in writing to the parties and division head.
A11. Support Person: Complainants and respondents have the right to be accompanied by a support person of their choice during meetings regarding a complaint under the HRAP. Where the investigator is of the opinion that the presence of the support person selected is inappropriate or that it may or is hindering the process, the investigator will advise the relevant party who shall be entitled to select another support person provided that doing so does not hinder or unduly delay the meeting/process.
The purpose of the support person is simply to be present to support the complainant or respondent. They are not permitted to participate in any way. As this complaints procedure is a mechanism for alternative dispute resolution, parties are not entitled to select legal counsel to fulfill the role of support person.
Witnesses are not entitled to bring a support person to meetings. However, if a witness offers details/evidence that may implicate them as a respondent or if others implicate the witness as a potential respondent prior to the meeting, the witness will be informed of their right to a support person and the meeting will be re-scheduled if a support person is requested, but not available.
A12. Time for Completion of Investigation/Mediation: Investigations under the HRAP should be completed within 90 days of the investigation initiation. The investigation will be initiated once management has assessed the complaint and communicated the assessment and next steps to the complainant. Parties will be advised in writing prior to the 90 day period if a delay is anticipated. Completion of investigations should not exceed 6 months unless there are extenuating circumstances.
A13. Reprisals: The HRAP strictly prohibits any retaliation, either direct or indirect, against an individual for: exercising their rights under the HRAP, initiating a complaint in good faith, investigating a complaint, being a decision maker in a complaint, participating as a witness in an investigation, being a respondent to a complaint, having been associated with, or representing a complainant, witness or respondent. Appropriate discipline for a policy violation (or other workplace misconduct) is not considered a reprisal.
A14. Disciplinary Action: Any employee who engages in discrimination or harassment, reprisals, or breaches confidentiality before, during, or after an investigation or resolution may be subject to appropriate disciplinary action up to and including termination of employment. Staff who are in a supervisory position and fail to take action when they become aware of or are advised of alleged discrimination and/or harassment may also be subject to disciplinary action. Disciplinary action may also be taken if a complaint is found to be vexatious, made in bad faith and/or an abuse of process. Consequences for policy violations may include but are not limited to: an apology, counselling, education and training, a verbal or written reprimand, suspension with or without pay, a transfer or termination of employment. In determining appropriate consequences, factors including, but not limited to, the following will be taken into account: the nature of the violation, the severity, whether the individual has previously violated the HRAP and/or whether there is relevant discipline on file.
A15. "Non-Code" Workplace Harassment (Employees only): Division management are responsible for intervening and addressing concerns/complaints of non-Code workplace harassment and incivility - where such complaints do not engage additional Code prohibited grounds. Managers should contact Employee & Labour Relations and HRO for assistance. The HRO will only accept complaints from employees of non-Code workplace harassment where there is evidence that division management has failed to meet policy obligations. Employees should raise their workplace harassment concerns to their superior. If the concern/complaint involves the employee’s superior, the employee may raise the concern with that person’s superior. HRO staff can advise parties where there are concerns about real or perceived conflict, fairness, etc., in exploring concerns. Consult the HRO for details.
A16. Refusal to Intervene: The HRO has discretion to refuse to intervene or investigate or may discontinue an intervention or investigation where:
A16.1. a complaint is made anonymously without sufficient detail to trigger policy obligations
A16.2. the complaint is outside the time limit
A16.3. the complaint is trivial, frivolous, vexatious or made in bad faith/an abuse of process; or having regard to all the circumstances further investigation of the matter (or intervention) is unnecessary.
Trivial complaints involve allegations that are of such a minor nature that proceeding with an intervention is not in the public interest. A frivolous complaint contains allegations that, even if true, are not a breach of the HRAP. A complaint is vexatious when the complaint has been the subject of a decision by an alternate complaint process that considered the human rights allegations, a reasonable offer to remedy the complaint was rejected by the complainant and/or the complaint was filed to annoy, embarrass or harass the respondent or is otherwise improperly motivated. Complaints are an abuse of process/made in bad faith in circumstances that include when an adequate remedy already exists or the complainant is engaging in improper action - fraud, deception, intentional misrepresentation or the complaint is filed out of malice, hostility, personal animosity or vindictiveness
A16.4. As this complaints procedure is a mechanism for alternative dispute resolution, a mediation or investigation may be terminated if either party to the complaint retains legal counsel and/or engages another complaint forum
A16.5. Residents and service recipients may be required to exhaust any other avenues of complaint/appeal which are reasonably available prior to making a complaint under this policy
A16.6. Complaints of harassment and/or discrimination related to contracted services may be made to the contractor and/or division responsible for the contracted service. All City contracted service providers are required to have internal harassment and/or discrimination dispute resolution processes, consistent with the City's process and mandated by provincial legislation. Consult the HRO for advice/assistance where necessary
A17. Complaints with the Human Rights Tribunal of Ontario (HRTO): Applications filed with the Human Rights Tribunal of Ontario will be referred to the City Solicitor and the HRO. Legal Services Division has responsibility for responding to HRTO applications. Contact the Legal Services Division immediately upon receiving any correspondence from the HRTO.
A18. Complaints with the Ministry of Labour (MOL): Staff must immediately contact the City's Legal Services Division and other City employees involved in responding to MOL complaints/visits/orders, upon becoming aware of a complaint to the MOL, the attendance of an MOL employee or upon receipt of an MOL order.
Where the complaint, visit or order is related to workplace harassment and/or sexual harassment, staff must also consult the HRO.
A19. External Consultant Investigations of complaints in section A are typically conducted by the HRO or divisional management. However, in exceptional cases (e.g., significant systemic or ongoing human rights issues that have not been appropriately remedied by internal interventions), the City Manager may decide or the HRO or the Legal Services Division may recommend to the division head, Deputy City Manager or City Manager that an investigation that would otherwise be conducted by divisional management or the HRO should be referred to an external consultant for investigation. In such cases, the HTO and/or Legal Services Division shall be involved in retaining the external consultant and determining the authority and duties of the external consultant. The scope of the external consultant's duties shall be outlined in the agreement. To the extent possible, the external consultant shall adhere to these Procedures and perform the role that is contemplated for the HRO within these Procedures, with necessary modifications.