In the last edition of From Case to Practice, we discussed a recent decision by Arbitrator Hart which looked in-depth at the proper approach to making policy decisions in workplace investigations (Part 1). In that same case, Arbitrator Hart also considered whether the behaviour in question was “workplace harassment” as defined in the Ontario Occupational Health and Safety Act (“OHSA”).

In Part 2, we examine Arbitrator Hart’s analysis of what constitutes “workplace harassment.” We will also look at an interesting way the investigation report was used to streamline subsequent legal proceedings.

The Case¹

You may remember from Part 1 that this case involved two employees working for a union (the Canadian Office and Professional Employees Union – “COPE”) who alleged that the Executive Director (the “Respondent”) bullied and psychologically harassed them. The employees’ own union (The International Association of Machinists and Aerospace Workers, Local Lodge 1922 – the “Union”) filed a grievance on their behalf in December of 2023.

Between March and December of 2024, an external investigator conducted an investigation (which included 38 interviews) and issued reports in January and March of 2025 which substantiated some of the allegations.

Our previous blog reviewed the process whereby Arbitrator Hart concluded that the behaviour in question breached the applicable Collective Agreement. Arbitrator Hart went on to consider whether the same behaviour also violated the OHSA.

What Counts as Workplace Harassment?

Not Every Difficult Interaction Crosses the Line

Arbitrator Hart began his analysis by citing several definitions of “workplace harassment” taken from arbitral case-law, including the following:

…[workplace harassment] includes words, gestures and actions which tend to annoy, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness”.²

Only significant misconduct that leads to serious harm should be viewed as harassment within the meaning of the collective agreement.³

These definitions seem to confirm that workplace harassment must be serious misconduct. The question is what is considered serious, and by whom? Many employees today describe how badly certain workplace conduct makes them feel, and as such, assume that they must be experiencing harassment. As Arbitrator Hart notes, the challenge in these cases is often to “distinguish between workplace harassment, on the one hand, and on the other hand, the normal abrasiveness of daily life in the workplace.”⁴

1. 1. The Objective Legal Test

In the arbitral context, the test for what constitutes workplace harassment is objective – would a reasonable person find the conduct to be significantly abusive? As has been held in other cases, not every “employment bruise” should be responded to as workplace harassment. Allowing the harassment process to be used for employees to “vent feelings of minor discontent or general unhappiness with life in the workplace” would be to “trivialize those cases where substantial workplace abuses occurred.”⁵

1. 2. Higher Threshold for Managers and Supervisors

There is also a higher threshold if the alleged harasser is a supervisor or manager – managers can be, for example, incompetent, irritating, or frustrating, but that doesn’t mean they are harassing. Arbitrator Hart noted that in order to constitute workplace harassment, the conduct in question should:

• involve a supervisor or manager acting in an abusive, demeaning or hostile manner;
• involve an element of bullying or intimidation; or
• should be degrading or humiliating.

A supervisor or manager may be abrasive, wrong, imperfect, annoying, etc. – but none of these things may be sufficient to rise to the level of workplace harassment in breach of the OHSA. However, some policies define prohibited behaviour in ways that hold people to higher standards than applicable legislation. And so, it is possible that, even if a supervisor or manager does not engage in “workplace harassment” under OHSA, they might still breach an applicable conduct policy, depending on the policy language.

1. 3. Applying the Facts to the OHSA Standard

This case provides helpful guidance in deciding when workplace behaviour might be serious enough to meet the definition of workplace harassment. Nonetheless, the conduct in this case easily met the threshold. The Respondent in this case was found by the external investigator to have engaged in a variety of actions, including:

• calling someone at work “crazy”, “drunk all the time” and “mentally unstable”
• saying of another that she was “incompetent”, “inexperienced” and “doesn’t know how to do her job” and that she “has multiple issues that make her “crazy”, had “a chemical dependence” and “mental health challenges”
• saying of another that she would push him into early retirement by increasing his workload
• saying of another colleague that he was “lazy”, “incompetent” and “terrible at his job”

Taking this and other findings into account, Arbitrator Hart had no difficulty concluding that the Respondent’s conduct was workplace harassment in violation of OHSA.

When are investigation findings accepted in subsequent legal proceedings?

There is one final aspect of this case that we felt was worth noting.

Historically, it was thought that an investigation stood on its own. If a party was dissatisfied with the investigation outcome, they might pursue the matter through a subsequent legal proceeding and the matter would essentially be re-examined again in full. Sometimes this is unavoidable, but given the time and cost associated with re-litigating the case in full, we are increasingly seeing parties agree to accept some or all of the investigator’s findings as a way to streamline subsequent legal proceedings.

In this case, at the subsequent arbitration, the parties agreed to accept the investigator’s factual findings in full, and asked Arbitrator Hart to consider solely whether the findings represented a breach of either the Collective Agreement or the Ontario Occupational Health and Safety Act (“OHSA”). Here, the issue related to the conclusions to be drawn from the findings – in other words, did the behaviour the Respondent was found to have engaged in breach the Collective Agreement or OHSA?

Because the parties seemed satisfied with the factual findings made by the external investigator, this arbitration was held in one day on April 7, 2026. All of the evidence the arbitrator used in making his decision is outlined in roughly 12 pages of his decision, presumably taken directly from the external investigator’s two reports. For an investigation that took many months and involved the participation of 38 people, approaching the arbitration in this way presumably saved a great deal of time, resources and further distress to the parties.

What does this mean for the practice…

• Not every workplace annoyance represents workplace harassment: No matter how strongly a complainant may feel about it, or be hurt by it, the test for workplace harassment is an objective one: would a reasonable person in the circumstances have found the conduct to be offensive?
• Managers and supervisors should be given reasonable additional latitude with their behaviour: Recognizing that managers are often required to do things that employees perceive negatively, like constructive feedback, performance improvement and even discipline, the question should be whether their behaviour was reasonable in the circumstances.
• A sound investigation and corresponding report may be used to shorten an arbitration or other legal proceeding: In some cases, the investigation and report might even be enough to persuade the unhappy party (and their union or legal counsel) that it is not even worth pursuing the matter further at all.

If you haven’t already read Part 1 of our two-part analysis of Arbitrator Hart’s decision, The Proper Approach to Making Policy Decisions in Workplace Investigations, you can access it here. Part 1 looked at the distinction between making factual findings and determining whether those findings amount to a policy (or other) breach.

¹ International Association of Machinists and Aerospace Workers, Local Lodge 1922 v Canadian Office and Professional Employees Union, 2026 CanLII 50092 (ON LA).

² Re Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225 at p. 241.

³ Ontario (Workplace Safety and Insurance Board) and CUPE, Local 1750 (Carito), (2014) 245 L.A.C. (4th) at p. 347.

⁴ At p. 30.

⁵ At p. 31.