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Workplace InvestigationsCanadaEN

Ontario Digital Workplace Investigations: Evidentiary Considerations for Virtual Misconduct

Amendments under Ontario's Working for Workers Five Act, 2024 broaden workplace harassment to virtual interactions, highlighting crucial evidence preservation protocols for digital complaints.

October 29, 2026 · 644 words
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Editorial hold — human review pending.

Country: Canada. Research snapshot: 2026-10-20. Source / development date: 2024-10-28.

Unresolved verification flags

Ontario-specific amendments. Verify commencement and the current OHSA; do not turn the express inclusion of virtual harassment into an unsupported duty to assess all harassment risks.

Resolve these limitations and the article-specific legal checklist before approval. This draft is educational information, not legal advice.

In Canada, the Working for Workers Five Act, 2024 received Royal Assent on October 28, 2024. As of the research snapshot date of October 20, 2026, executive teams and investigation officers must account for digital evidence when addressing workplace misconduct.

The Virtual Expansion of Statutory Harassment

Schedule 4 of the Working for Workers Five Act, 2024 enacted critical amendments to subsection 1(1) of the Occupational Health and Safety Act (OHSA), broadening "workplace harassment" and "workplace sexual harassment" to explicitly cover actions occurring "virtually through the use of information and communications technology" [source: launch-source-21]. These provisions took effect upon Royal Assent on October 28, 2024, pursuant to section 11(2) of Schedule 4 [source: launch-source-21].

By formally incorporating virtual interactions into statutory harassment definitions, the law places digital communications at the center of employer investigations [source: launch-source-21]. While the OHSA mandates that employers conduct investigations into incidents and complaints of workplace harassment, the inclusion of information and communications technology means that digital records—such as text messages, corporate chats, emails, and video meeting logs—frequently serve as the primary factual record.

Statutory Record-Keeping Principles in Bill 190

The Working for Workers Five Act, 2024 emphasizes verifiable record retention across multiple areas of employment law. For example, Schedule 2 amends the Employment Standards Act, 2000 (ESA) by adding section 15(7.1.1), requiring employers to retain interview information provided under section 8.6 for three years [source: launch-source-21]. Similarly, Schedule 4 adds sections 23.1(2) and 25.3(3) requiring constructors and employers to keep and maintain washroom cleaning records as prescribed [source: launch-source-21].

While the OHSA amendments in Schedule 4 do not create a separate statutory retention schedule for virtual harassment complaints, the explicit inclusion of digital misconduct necessitates that internal investigation procedures maintain reliable evidence preservation standards to satisfy existing employer investigation duties [source: launch-source-21].

Governance Recommendations for Digital Evidence Preservation

To ensure fair, objective, and defensible investigation processes, executive leadership should implement standardized protocols for managing digital evidence in harassment complaints.

First, management is recommended to establish strict digital preservation protocols upon receipt of an informal or formal complaint. In a hypothetical scenario, an employee submits an internal complaint alleging persistent sexual harassment conducted through encrypted chat applications and disappearing messages on personal devices used for work. Investigators should immediately advise the complainant and respondent to preserve all relevant chat logs, screenshots, and device backups without altering original files.

Second, internal investigator guidelines should address technical metadata. Investigators should be trained to record timestamps, sender identification, IP logs where available, and platform identifiers to substantiate authenticity. Relying solely on cropped screenshots without preserving underlying context can lead to incomplete or disputed factual findings.

Third, leadership should coordinate with internal information technology and security teams to implement automated litigation holds or digital preservation freezes on corporate communications when a formal investigation is initiated. Doing so prevents automated message-deletion routines from inadvertently destroying critical records.

Legal review required

Organizations must undertake a formal legal review of digital investigation procedures before finalizing governance policies:

  • Confirm that harassment investigation frameworks fully incorporate the amended definitions under subsection 1(1) of the OHSA regarding virtual misconduct.
  • Check whether any newly proclaimed regulations alter record retention standards or procedural requirements under Schedule 4.
  • Ensure that electronic document retention policies align with applicable privacy laws and employment standards without overstepping statutory authority.
  • Any unsupported or uncertain legal assumptions regarding digital evidence admissibility or statutory compliance must be reviewed by legal counsel before publication.

Educational information, not legal advice.