Should Ontario Follow Belgium’s Lead in Codifying Workplace Investigation Laws?

Belgium has taken a significant step in regulating workplace investigations with the introduction of the Private Investigation Regulation Act, enacted on May 18, 2024, and set to take effect on December 16, 2024. This legislation marks a pivotal shift in balancing the investigative needs of employers with the fundamental rights of employees.

As Belgium takes a big step in codifying these principles, it raises an important question: Will Ontario follow suit with similar legislation? Currently, Ontario relies on a patchwork of existing laws, such as the Occupational Health and Safety Act (OHSA) and the Human Rights Code, to guide workplace investigations, but there is no standalone legislation that comprehensively addresses the complexities involved. Could Belgium’s bold move inspire Ontario lawmakers to create more robust, unified regulations?

The increasing importance of workplace investigations in Ontario—driven by rising concerns over harassment, discrimination, and workplace safety—highlights the gaps in the current framework. Without unified legislation, there is inconsistency in how investigations are conducted, potentially leading to breaches of employee privacy, ethical oversights, and legal vulnerabilities for employers. For instance, Ontario laws do not clearly define standards for transparency, investigator qualifications, or data privacy in the same way Belgium’s new act does. Could Belgium’s bold move inspire Ontario lawmakers to create more robust, unified regulations that provide both clarity for employers and stronger protections for employees?

Key Takeaways for the New Belgian Protections

1. Transparency Is Now a Legal Requirement: Employers must clearly articulate their right to conduct investigations within official documents, such as collective bargaining agreements or company policies. These policies must be developed in consultation with employee representatives. Employers have until December 16, 2026, to implement these policies. Post-deadline, any investigation conducted without the proper framework will be legally invalid, and licensed external investigators will be obligated to refuse such assignments.
2. Strict Rules for Internal Investigations: While HR personnel are not required to hold special licenses, they must adhere to stringent ethical guidelines:

• No pressure tactics: Interviewees must not feel coerced into providing information.
• No deception: Investigators are prohibited from using tricks or provocations to elicit responses.
• No illegal methods: Encouraging others to gather information unlawfully is strictly forbidden.
• Detailed documentation: A thorough, chronological record of the investigation must be maintained.
• Timely reporting: A final written report must be completed within one month of the investigation’s conclusion.
• Legitimate business interest: Investigations must serve a clear business purpose; if that interest ceases, the investigation must halt immediately. Sensitive information, such as political opinions or trade union memberships, is strictly off-limits.

3. Requirements for External Investigators: Employers engaging external investigators must ensure they meet the following criteria:

• Be at least 21 years old.
• Possess relevant qualifications.
• Have no serious criminal record.
• Hold a valid license.
• Uphold fundamental rights and maintain independence to avoid conflicts of interest.

Data Privacy and Consent

Given Belgium’s adherence to the General Data Protection Regulation (GDPR), all workplace investigations must rigorously comply with data privacy standards:

• Obtain specific, informed, and documented consent from the person under investigation, particularly for interviews, background checks, or inquiries into personal matters.
• Clearly explain the purpose and scope of the investigation to the employee.
• Ensure all personal data is confidential and used solely for the investigation.

What Are the Consequences of Non-Compliance?

Failure to comply with the new regulations can lead to severe repercussions:

• Invalid evidence: Findings from non-compliant investigations will be inadmissible in court.
• Legal challenges: Employees may initiate lawsuits, with courts likely to favor the employee if violations are proven.
• Fines and penalties: Companies could face significant financial penalties for non-compliance.

Final Thoughts: Will Ontario Be Next?

Belgium’s Private Investigation Regulation Act sets a precedent in codifying the ethical and legal boundaries of workplace investigations. This move not only strengthens employee protections but also provides clear guidance for employers navigating complex workplace issues.

As these principles become law in Belgium, it raises an intriguing question for Ontario: Will we see similar legislation introduced to formalize the standards for workplace investigations? While Ontario’s current regulations, such as the Occupational Health and Safety Act (OHSA) and the Human Rights Code, touch on investigative obligations, a comprehensive, standalone act could provide the clarity and structure seen in Belgium’s approach.

For now, Ontario employers should keep a close eye on international developments—Belgium’s proactive stance might just inspire the next wave of legislative reform closer to home.

Author – Rachel Patten