If a possible harassment incident occurs but no one complains, can an employer avoid investigating?

Kelly VanBuskirk, KC, PhD, C. Arb.

A question frequently asked by managers is this: “If I become aware of a possible harassment incident but no one complains about it, do I have to do anything?” Similarly, “If an employee confides that they feel like they’re being harassed but don’t want me to say anything to anyone, should I keep their secret?”

The answer is:

In New Brunswick, employers have to investigate even if no one files an official complaint.

The relevant legislative provision for provincially regulated employers is:

Reg. 91-191, s. 374.4(2) A code of practice for harassment shall include the following:

(a) a statement that every employee is entitled to work free of harassment;

(b) the identity of the person responsible for implementing the code of practice;

(c) a statement that an employee shall report an incident of harassment to the employer as soon as the circumstances permit;

(d) the procedure the employer shall follow to investigate and document any incident of harassment of which the employer is aware…

Guidance from the Courts

A June 2025 decision of the Ontario Court of Appeal underlines employers’ duties on becoming aware of an incident of harassment (even in the absence of a complaint):

Metrolinx v. Amalgamated Transit Union, Local 1587, 2025 ONCA 415 (CanLII), https://canlii.ca/t/kchvc

[36]      Metrolinx was statutorily obligated to investigate the incident even in the absence of a complaint. An employer’s duty to investigate is not just a duty owed to the victim, but to all employees, who have a right to work in an environment free from demeaning and offensive comments: Divisional Court reasons, at para. 67. There was a sufficient basis to trigger Metrolinx’s obligation to investigate the incident, irrespective of whether Ms. A filed a complaint.

[37]      Consequently, although the Policy states that “the investigative process is initiated by a complaint”, the Policy cannot limit Metrolinx’s obligations under the OHSA: at paras. 55 and 66. Whatever the wording of the Policy, Metrolinx did not become the complainant when it conducted the investigation because no complainant was necessary: at para. 65. Contrary to the Arbitrator’s view, Metrolinx was not in a conflict of interest in carrying out the investigations: Arbitrator’s reasons, at paras. 16 and 150.

[38]      Second, the Arbitrator’s focus on the absence of an official complaint by Ms. A. is based on a failure to recognize that there are many reasons why a victim of harassment might choose not to pursue an official complaint, none of which erase the harassing behaviour or the employer’s obligation to investigate it in order to protect the workplace from a hostile or demeaning environment: Divisional Court reasons, at paras. 47 and 59-60. The Arbitrator erred by concluding that Ms. A’s reluctance to pursue a complaint meant there was no harassment; this line of reasoning relies on rejected myths and stereotypes about how an employee in Ms. A’s situation would respond.

[39]      The Supreme Court’s warnings about relying on presumptions and stereotypes about the expected conduct of victims of sexual assault extends equally to arbitrators adjudicating sexual harassment grievances: see Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388, 439 D.L.R. (4th) 405, at para. 42; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 30-31. Here, the Arbitrator’s reliance on myths, stereotypes and presumptions was unreasonable. He erred in concluding that Ms. A’s reluctance to pursue a complaint meant that the impugned comments did not have a negative impact on her or within the workplace, and there was therefore no harassment. The reluctance of a victim of sexual harassment may be caused by many factors, but that reluctance does not relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention: at paras. 56-59.

 In conclusion, employers may want to think of harassment as another safety risk. If you were aware of a physical safety risk in your workplace - let’s say a faulty support beam that could result in the roof crashing in - would you only address it if someone complained? Obviously not. You’d deal with the problem as soon as you learned of it. The same is true in respect of harassment.