Andre: Good afternoon. Welcome Gowling WLG's Risk Rewards session. This session is title Top 10 Workplace Investigation Cases of 2019 - What We Learned. My name is Andre Poulin- Denis. I am a lawyer with Gowling WLG and I'm part of the employment labour and equalities group here in Ottawa. Thank you for taking the time to join us today for what will be a very interesting session. We're joined today by John Peters, of Gowling WLG as well as Janice Rubin and Cory Boyd, of Rubin Thomlinson. Our presenters have extensive experience in employment law but, more specifically, in addressing and investigating workplace issues. I'm sure that their insights will be very valuable today. The Risk Reward series was launched by Gowlings in 2016 and is designed to help executives and inhouse legal counsel stay ahead of the most important legal regulatory and corporate risks that face their organizations. Employers have a legal obligation to respond to workplace allegations of misconduct and, as a result of the way they respond, can either create or mitigate some of that risk. Workplace investigations are more common today than ever before and along this area continues to evolve rapidly, and becomes more nuanced, which is why we hope the contents of this session will be useful to you when you encounter these issues in your workplace. As a reminder this session has been approved by the Law Society of Ontario for 1.5 CPD credits and if you are a member of the Human Resource Professional Association, it has also been approved for 1.5 credits, and there will be an email that we'll circulate with the registration code for those of you who are members of the HRPA. To start the session, John will touch on some of the legal obligations of employers regarding workplace investigations, as well as the role of external counsel and that process. Then Janice and Cory will present the top 10 workplace investigation cases that they have encountered in the last year and then we'll open up the floor to questions. We will endeavor to complete the program by 6:00pm for those of you who have other engagements. For those of you who can stay a little longer we'll of course invite you to take part in a little bit of a networking reception.
So a little bit about our presenters. John Peters is a partner at Gowling WLG's Ottawa office. He practices in the advocacy department and, in particular, the employment labour and equalities group. His practice focuses on providing specialized legal advice to employers in all sectors with a specific emphasis on Federal undertakings. John came to us from Export Development Canada where over a period of 20 years he was their lead employment law counsel. John was also EDC's principal litigation counsel responsible for providing advice on all liability related issues and overseeing their litigation management practice group. John is well versed in how to conduct and conclude workplace investigations. His expertise include drafting the underlying mutual respect policies and other related employment policies and protocols. John's crowning achievement came in grade 2 when he correctly guessed the exact number of jellybeans in a jar at a school wide competition. After school he needed a police-like escort to make it home alive with all of his bounty.
John: I peaked early.
Andre: Janice Rubin is the Co-Founder and Co-Managing Partner of Rubin Thomlinson LLP. With over 20 years of experience she is a highly accomplished employment lawyer. One of the country's foremost experts in workplace investigations and the trusted advisor to senior human resource professionals. Janice and her colleagues work across the country and have conducted various high profile investigations and reviews in workplaces such as the Canadian Broadcasting Corporation, the Canadian Olympic Committee and the Government of Newfoundland and Labrador. Janice has been awarded Lexpert Zenith Award, the National HR Awards Employment Lawyer of the Year Award and the Chambers and Partners Award for Corporate Social Responsibility and Inclusion. She is listed in Canada's Who's Who and Lexpert's Leading 500 Lawyers in Canada. Janice has co-authored two books, Human Resources Guide to Workplace Investigations, along with partner Christie Thomlinson, and the Second Edition of Law of Termination. She also has a forthcoming book titled the Secret Life of Rigby - What my Poodle Does While I'm at Work. I'm kidding. I made that part up but she does have a dog named Rigby.
Janice: Yes. Who is a poodle.
Andre: There you go. Cory Boyd has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services and Toronto Community Housing, as an inhouse investigator and human rights consultant. At Rubin Thomlinson he continues to conduct workplace investigations and workplace assessments for clients. In addition, Cory assists employers in developing systems to ensure compliance with legal obligations including those relating to the Ontario Human Rights Code, the Occupational Health and Safety Act, the Canada Occupational Health and Safety Regulations and the Accessibility for Ontarians With Disabilities Act. He also delivers training to staff at all levels on their roles within these processes. In addition to being a terrific lawyer, Cory is also an excellent point guard. In fact, he faced off against NBA 8 time All Star Steve Nash, about 30 times, including once when his team beat Steve Nash's team to go on to be the BC Provincial High School Champions. Cory will also moonlight on your basketball exec team. John, I'll hand the floor over to you.
John: First of all I don't have a slide deck. Which is the first time I've ever done a presentation without a PowerPoint. So I'm sort of playing without a net. My presentations only going to be about 15 minutes long, or less, I hope. It's three parts. The first is talking, it dawned on my as I read the title of this seminar, Top 10 Workplace Investigation Cases, and I'm going to talk to you about your statutory obligations. I don't think any legal seminar is at all fun if you can't get into the regs. I'm going to talk about the statutory context in which you find yourself. I'm also going to talk about the roles, as Andre stated, the role of counsel in relation to workplace investigations. Then, taking literally a page from Janice's book, which I am going to endorse throughout this presentation unbeknownst to her and Cory, it's an excellent book. I'm going to just talk, very quickly, about investigation triage and how important that is to get that right at the beginning of the process. All within the next 12 minutes.
Your statutory context. You're either Federally regulated or you're Provincially regulated. So we're going to talk about the Provincial regulations and statutes which are effectively, whether it's Federal or Provincial, it's just a codification of your legal obligations with respect to a safe and healthy workplace. In Ontario it's the Occupational Health and Safety Act, as you know, it was amended I believe in 2016 to include section 32.07, which talks about the employers obligation to investigate. Not just when there' s a complaint but when they are aware of an incident. That's a very important part and Janice and Cory are going to touch on that. What is appropriate in the circumstances. There's also an obligation under the Act to provide both the respondent and the complainant with the findings of the report in writing and the corrective action that was taken. We're going to talk a bit more, again Cory and Janice are going to get into it, but what is an appropriate investigation in the circumstances? We're going to try and talk a little bit about whether you do an investigation or you try and resolve it informally. In the past, when I was at EDC, certainly we looked at informal resolution and not going to the investigation process and try to resolve conflicts that way. It's clearly, the laws advanced, the laws more nuanced, your statutory obligations are more set and so basically your ADR, or mediation proposals, do not excuse you from conducting an investigation. Your basically stuck with investigations. Which I think is a good thing. In addition to the Occupational Health and Safety Act, always be cognizant in Ontario, the Ontario Human Rights Code because discrimination issues can also be part of harassment and, sadly, also a workplace violence issue. There always can be a human rights element, not always, but there can be and there could be remedies that are sought by the employee through that legislation.
Now the Federal sphere. So if you're a Federally regulated employer, you must adhere to the Canada Labour Code, as you may know. My favourite piece of legislation and new amendments and regulations that are coming. Which I say carefully. You may know about Bill C-65. It received Royal Assent on October 25th, 2018 but it's not in force yet, but it's going to become in force this year. There are some changes. The changes are meant to deal with workplace harassment and workplace violence prevention. There's a new definition of workplace harassment and violence. There's a positive obligation to provide workplace training for all employees. There's also a restriction on the ability of workplace health and safety committees and other HR groups from investigating harassment and workplace violence issues. The most important part, I think, of Bill C-65 are the new proposed regulations, which again are not in force. But sections 18, 19 and 20 of these proposed regulations are quite interesting and new and some new development in this are of the law. Number one, they have a clause that is similar to 32.07 which basically states there's an emphasis on conciliation. So this informal, or maybe non-investigative dispute resolution, if that doesn't work and the principal, which means the complainant, they use the term principal instead of complainant in this legislation and regulations, if the principal wants to proceed you must investigate. There is that obligation to investigate. The big, are you ready for it, section 20. This is exciting. Or not exciting or may strike fear into the hearts of HR professionals and inhouse counsel. Section 21 now, if these regulations are put into in force and we believe that they will be, the employer, the principal again, which used to be the complainant, and the responding party must select a person to act as the investigator. So now it's now up to the employer to select the investigator, unilaterally. All three parties have to agree on an investigator which is a different process. It's almost like literally an arbitration or mediation where there's a panel and you have to decided on a sole investigator or arbitrator. It also beefs up the who can investigate. I'm going to talk a little bit about investigation triage in a moment. But who can investigate? Under these regulations, section 20.2, the investigators have to be trained in investigative techniques. They have to have knowledge training experience relevant to harassment and workplace violence and they have to have knowledge of the Canada Labour Code, the Canada Rights Act and any other Federal legislation that applies. You can't just hire the $50.00 an hour ex-cop who now investigates workplace cases. You have to hire Janice: and Cory.
Janice: It does not say that in the regulation. We tried lobbying for that but it didn't work.
John: They're not set in stone yet so.
Janice: Always an opportunity.
John: I did see your picture in the Gazette notes. Okay. So now I'm going to move on, I know I hate to walk away from regulations, but I'm going to talk about the role of counsel. Your counsel, whether internal or external, what Gowlings can do or what your internal can do for you during the investigation process. I've broken it up into three different stages. The first stage is the beginning stage. The first stage is what I would call intermeasures. That's when you talk about, and you have to design, separating parties, and witnesses depending on the nature of the complaint, and rules concerning contact. Not just, again, the parties at issue but also witnesses. Because you don't want, and we've seen in certain cases where witnesses have been known to talk to each other, but maybe we're part of the media, I don't know. Janice, do you have any experience with that? You want the witnesses to maintain their testimony, preserve their evidence, their own evidence. There are issues at the very beginning about separating people. Communication issues. Who needs to know? What do you deal when you might have a high profile case? Keeping the matter confidential so, again, it's part of communication and who needs to know, but it's also for the parties and witnesses. When I was inhouse counsel we would certainly have our HR professionals instruct the parties, and the witnesses, that they had not talk to each other about this specific case, and to keep it confidential, and they're not allowed to share anything they know about the case with any other person not involved. Then preserving the evidence. Which, again, is preserving their evidence but also preserving the electronic records. Which, as you know, are many thousands and thousands of pages of documents and your ability to preserve evidence and to go in. There's been, in my experience in overseeing investigations, is the importance of being able to preserve that evidence that is oftentimes critical to the case. That's the beginning.
I think, inhouse counsel, and Janice and I talked and Cory, we talked about this earlier. There's a rule for when you move into the investigation process, helping the employer, as counsel, helping the employer and the investigator nail down the mandate and set the parameters. Even if you have a big complaint you might not want or need to investigate everything because not everything might be appropriate with respect to your legal obligations. Setting the mandate early so you know exactly what they're going to investigate and how wide it's going to go. Which it can change over the time but it's really important at the beginning to set that properly. We're going to talk about this in my last stage which is investigation triage but choosing whether you choose to investigate, or not, as discussed earlier in said regulations and statutes, you basically don't have much of a choice anymore. It's rare that you don't have to investigate. There's still opportunities and we can discuss you're potential of resolving it informally. Secondly, and maybe most important, choosing the right person to investigate. Again, the regulations under B C-65 require people to have specific expertise and knowledge of the law. You need to deal with matters during the investigation. Things can come up during the investigation that you didn't foresee. We had one case, and I don't want to get into great details, where the investigator went sideways and we had to stop the investigation. Because they overshot their mandate. They were providing legal advice to one of the parties and we had to stop the investigation and start it all over again. So you have to be there. It's really important for legal counsel to assist the employer, assist HR, in managing and, assisting the investigator to the extent possible, in making sure that things run smoothly and dealing with things as they come. Then of course, there's a review and acceptance of the report when it's written. Choosing corrective action. Discipline training, reconciliation if any, releasing th report results and corrective action. Again, your obligations under the Ontario's legislation is quite clear. Then, a lot of people forget about post-report action, administering discipline, dealing with the fallout from that, in case it involves termination. Sometimes there's internal communication. There is training. There's going to be training. Bill C-65 requires you to train but there'll be training. There could be lessons learned as a result of the investigation. Then a policy and protocol review and update. There's lots of things that counsel can do, and which is why when in my last part we're going to talk about triage, why we recommend, why we, at least at Gowling, think that our role, we want to remain your legal counsel, your independent counsel, or if you're internal counsel, you want to remain separate and apart from the investigation and you don't want to be the investigator.
Just to go through the investigation triage really quickly. Again, I'm plugging Janice's and Christine's book. This is excellent. It's a bible of, did you say a third edition was coming out soon?
Janice: No. I did not say that.
Andre: That was my joke.
Janice: That was my nightmare. Not a joke.
John: Is there an e-version?
Janice: No, there's not.
John: Dammit.
Janice: But I will say this about that book. The difference between the First Edition and the Second Edition was that we wrote another book. It was not just revising it. We just basically threw out most of what we said. In fact, when we went to review it, we were horrified by some things. So doing your practice by the first version, throw that out, so it's a much bigger book. That's why there's not going to be a third book.
John: Okay. It's perfect. That's why.
Janice: No. It's because
John: It's so good. It has so many insights.
Janice: Did you like the pictures?
John: I love it. It's mostly cartoons and that's how I learn.
Janice: It's a graphic novel.
John: I can't actually read. I'm just looking at, this is all by memory. Okay. Just quickly because I know I'm running out of time, do you investigate? We talked about that. Your obligations. Who should investigate? You have to decide between internal and external. When I say internal there's great HR professionals and there are cases and circumstances where you use an internal investigator. There are problems. Janice talks about them. One of my favourites, the ooh factor. Or eww if you're Jimmy Fallon and you can say it properly, where there could be very delicate issues that are being alleged, and maybe as the HR professional you really don't want to investigate the senior VP's sexual preferences or unique views on the world. You might want to give it to an external person. Also, there's a potential, and it's not really good for the respondent, there could be a presumption of bias is the HR department is consistently saying, "No. There's no harassment, no workplace violence here." That's not great for the respondent because the complainant and others might think well, that's because they were investigating Mark Joslin and he's a big deal, so of course he's innocent according to the HR department. But if you have somebody independent that's also good for the respondent because it shows, when they are exonerated, then it shows it was an independent investigation and it does provide some comfort to both sides, I think if you have somebody more independent. The question do you use internal counsel to investigate these complaints? My number one rule when I was internal counsel for EDC was never. Because there's so much conflict as internal counsel that you have because one day you could be cross-examining the respondent on this complaint and the next day you're taking instructions on a file. That's just problematic especially if you don't have 24 lawyers in a department. I never saw it as a good choice. You can use external counsel. Obviously Janice and Cory are external. They are lawyers but when they come to you they come to you as expert investigators. There's another rule for external counsel to act as your legal counsel. Anyway, bottom line, again according to the regs, that you have to be properly trained and experienced. One of the jobs that we can do is help you find good investigators. You need to find a good investigators and we can help you find good investigators. Cue Cory and Janice. Last thing I'll say is the last external investigator you may need is a police officer. Because the acts of violence, workplace violence, are, and likely are criminal, and there could be an ongoing and parallel Crown investigation. Again, Janice you've had an experience with that maybe?
Janice: Mmhmm.
John: Maybe we should talk about that. So you could be dealing with that internal investigator. You can be dealing with an external investigator, on the workplace harassment and workplace violence issue, but you could also be dealing with a coinciding parallel criminal investigation. That's it and I did all that in 100 minutes. Sorry. Go ahead.
Janice: That's good.
Andre: Want to ...
Janice: Sure. Well, hello. Thank you for that, for warming up the audience, and for giving us the statutory framework. It's really nice to be with you. It's nice to be in Ottawa. I was in the cab and saw the lovely skaters going down the canal which is a treat. Because we are workplace investigation geeks we actually talk about these things. When we get to the end of the year we think what were the cases that were most interesting? What were compelling? What did we rely on? What did we talk about? This is kind of an arbitrary list from us. If you were doing your own list you might come up with other stuff. But we think that there's some really good nuggets here, in terms of an investigation practice. Whether you are an internal lawyer, HR person or whether you're an external lawyer advising a client, or just your interested in the zeitgeist because these cases increasingly end up on the front page of the business section of the Globe & Mail, or the Toronto Star, or God forbid, the Toronto Sun, and they're just kind of interesting. With that expansive, personally curated list we want to tell you a little bit about the themes that we extract. We've got a case talking about procedural fairness in investigations. We have a case talking about structural independence. That's my favourite case the whole year. The right to remain silent. So we're going to talk a little bit about the interplay between investigations and criminal investigations. Post-employment harassment which is funny. Like really? The employment relationship ends and you're still harassing your colleague. So we've got a case on that. It's rather extraordinary. Sanctions for sexual harassment. Cory and I were talking about this case coming over. We've got a great case for you. Intermeasures, to your point John about one of things you think about in triage, and that's what is the content of an investigation that is appropriate in the circumstances? Appropriate in the circumstances being a term of art under the Provincial legislation. We have a flawed investigation case along with what happened to the employer in terms of exposure to damages because there's always got to be one. This one's great. We've got a case on discrimination and we've got a case involving grievance arbitration third party standing. So I think, Andre, you want us to finish up at about 5:45, 5:50?
Andre: That'd be great.
Janice: Okay. Then I think the plan is to take some questions. But that being said, we're pretty informal, if you're dying to ask a question as we're talking, by all means don't wait until the end. Put your hand up and interject. That would be fantastic. Okay. So with that, the first case is a case called Chapman v. Canada. Now, your firm has a connection, I believe to a case that was decided a number of years ago by Mr. Justice Shoan. Was that not your case?
Andre: Justice Zinn.
Janice: Zinn and it was Shoan. Whoops. There's a weird conflation. We brought you another Justice Zinn chestnut because Justice Zinn continues to be interested in workplace investigation cases.
Andre: He was a partner here.
Janice: He was a partner. So it's case that belong in this firm. It's a tradition, right.
John: So he's super smart.
Janice: He's super smart. He does seem to have a real interest in workplace investigations. This is relevant. Here we are in Ottawa. What happened was the facts underlying this case, I would just say are very, very sad. It arises out of a suicide, sadly, of an employee. Who reported to the Ms. Chapman, who you see in the style of cause there. Ironically, Ms. Chapman was the director, or not ironically, director of investigations in the office of National Defense and Canadian Force Ombudsman. What happened was Ms. Chapman had been, sorry, the employee who reported to Ms. Chapman had been involved in an internal disciplinary process. Then, sadly, he died by suicide. There was concern in the employer, in the office, that somehow Ms. Chapman had mismanaged this, given that very sad result. An investigation was launched. In fact there had been a letter that had been sent accusing her of misconduct. The employer began an investigation and, what's really important to understand in this specific circumstance, is that the investigation was under the Public Servants Disclosure Protection Act. In that Act, what it says is, if you were subject to an investigation under the Act, you are entitled to capital P, capital F, Procedural Fairness. Now when Cory and I, and the rest of our office, do investigations, what we are obliged to do is sort of appropriate in the circumstances which is sort of small f, fairness. It's not exactly Procedural Fairness. It kind of mirrors it is the 85 - 90% there. But this is like the term of our capital P, capital F, Procedural Fairness. What happened to her is she received a set of allegations and they were not particularized. It simply said that she had engaged in gross mismanagement (disciplinary action). Therefore she didn't know before her interview specifically what wrongdoing she was alleged to have engaged in. In fact, given her role, she knew enough to ask for more. No more particulars were forthcoming. The investigation proceeded. In addition to wanting to interview her also interviewed witnesses. In terms of the sequence, the witnesses information was not presented to her to respond. So that was considered to be a flaw in the investigation process. The other interesting thing about the witnesses evidence that Justice Zinn really focused on, not only understanding the allegations, but that this person who was subject to the investigation had an interest in understanding the evidence. This is really interesting. You'll hear this again in some of the cases. When you think about your own practice, like what we typically have focused on is what are the allegations? But now when we do the summary, not all of us, but a fair number of us are now thinking about including key pieces of evidence, if we have it, when it's going to the respondents. I'll give you an exact example, that sort of comes out of the principal of this case, for something I recently did where a respondent was accused of engaging in sexual assault after a party at the office. What I knew, and what the employer knew, was that there was a record from the taxi that he took. It was a corporate taxi account. They could see that he had used the taxi chit sort of the morning after the alleged assault occurred and that the journey began near the complainant's apartment. That's a piece of evidence. That's not the allegation. That's a piece of evidence. I thought, as a matter of fairness, in part because I had read this case, that I should disclose that. So I did when I prepared the summary of allegations. This is what she says and in addition we have this. At the end of the day, because of these flaws, Oh. Another flaw was that she was prevented from taking notes during the interview. The investigator said you cannot take notes during the interview. It doesn't make any sense. I think it was the odd twisted concern about confidentiality and not taking the evidence out of the room. But, that in our opinion, is a naughty. You can't forbid somebody from doing that. As a result of all of this the report said that she did engage in wrongdoing. She goes off to court and has the decision basically set aside. Justice Zinn said that this was truly unfair. The process, and by the way, this was an external investigator on the vetted external investigator list in the Federal government. So we'll have more to talk about that. But this process was not procedurally fair. In fact, Justice Zinn says that the other failing was that she was entitled to know what the decision was and be able to comment on it before it was elevated to the ultimate decision maker. It's a really yet another interesting case from Justice Zinn and I think what it does for employers, it prompts you to really examine are we being as far as we can be? Even though we may have done investigations and done the same kind of thing for 15 years, with the sort of additional scrutiny in the current environment, can we be more fair? What would prevent us from disclosing evidence, for example, to a respondent? Is it because we really want to play gotcha with the respondent? But does fairness dictate that? How will the whole process look on replay? What's great about Justice Zinn is he shows you how the process looks on replay and it's probably at odds with what the investigator intended, necessarily, but it doesn't look so great on replay. At the risk of sounding hugely self-serving, in the wild west of external investigators, and there are many, many good external investigators and they don't all work at Rubin Thomlinson. I will say that. There are fabulous people out there who do a great job. But you really have to be careful because what happens is you take your baby, John's baby, and it goes to us. Then if we mistreat the baby it's still John's problem. So you have to be really, really, really, really, really, careful. I think the content of fairness is a bit of a moving target. It's evolving. It's really something to think about. So that's one of the reasons why we loved that case. And th risk, just to be really clear about this, is that although it has never happened to us, theoretically, if a respondent talks to us, and we typically take notes and we also will make a recording, theoretically the Crown could obtain a production order and get those statements from us and use it to contradict what the respondent has to say. Theoretically, as I say, may not be us, but it's never happened. There have been times when we've been so worried about that we've gone about photocopying our entire file because we think, and they come in and they take the file away, right? We've done that with some cases but it's never happened. I think in that situation, when I knew that the respondent and his counsel and his union, were seriously considering what they were going to do in this situation, I did feel fairness, then dictated that not only was it a he said/she said, but that in fact I had some evidence that seemed to place him where she said he was. The only conversation I'd ever had with him was a process conversation. He had never said to me, "I was there." or "I wasn't there." But I thought as he considered his options with us he needed to have that disclosure.
John: Do you provide the respondent with all the witness testimony that you have? How detailed do you get in providing the evidence that you've gathered?
Cory: Basically we receive witness evidence that contradicts the evidence of the respondent and we intend to rely on it to make our findings. We would share it with the respondent before completing our investigation, in some way. It might not be the exact same way but it would be in some way. They would get to know that there are witnesses who contradicted them and be able to speak to that. Sometimes identifying the witness but often you can do it without identifying the witness, because it doesn't matter which two people in the hallway heard the fight, or whatever the case may be.
Janice: Here's the other potential problem is that, and this sort of ties into the next case, the TTC case that I said I would show you and I somehow have managed to leave in my hotel room. So I'm not going to show it to you. I wanted to show it to you because it's short. I think if you're going to read anything you should read this case. It was the City of Toronto's Ombudsman, she calls herself the Ombudsman, Susan Opler, and what she was doing she was investigating an investigation. There had been an incident on the TTC involving a young man, a young black man, who had been sort of tackled by one of the fare inspectors. l gather that it was filmed by some passersby and it ended up in the media and it looked terrible. It prompted the TTC to do it's own investigation. Then the Ombudsperson, or the Ombudsman wanted to look at the investigation and whether it was sufficient or not. In the end she decided that it was insufficient and one of the reasons why it was insufficient is that she looked at a couple of biases. She talked about unconscious bias which had not been explored in the original investigation. It was a young black man and there was certain things about the fact that he was apprehended, the fact that he was tackled, the fact that he was a young man, that seemed to suggest maybe a disproportionate amount of force and, we know in the world of unconscious bias and racial discrimination, that's often the presentation. Where there's just too much, too much force. The other thing, the other bias that she talked about, that she was concerned about was confirmation bias. This is how she talked about the bias that is exhibited by internal investigators. When they kind of know the people or they have a particular outcome. Maybe it's a desired outcome, maybe this unconscious, and he or she was concerned there was some indicia of a confirmation bias. So returning now to the issue of witness evidence. If you assume that one of the extra challenges that you have, I mean how many people here are an internal investigator or have some contact? One? Okay.
Cory: We're talking to you.
Janice: We're talking to you. I'm sure you are a lovely person. But you know, there are challenges. There are certain challenges when you are the internal investigator, right? Let's just assume that some of those challenges and some of those biases you are aware of, and let's just assumed that some of them you're not. If you marry that bias with I think I can hold back some evidence, I think you're asking for trouble because I think holding back the evidence may be the play out of that bias. It may not be, well, let me think about this. If I hold it back is it a legitimate testing of the credibility to sort of ask the question but say, "Ah ha! I have this that contradicts you." Maybe. I understand that but I'd be concerned in the hands of internal investigators that's maybe how it would get used. Even then it does help you a little bit with credibility. Honestly, having sometimes done that, like between interview number one and interview number two with the respondent, people do forget or people just remember things in different ways.
Cory: And are you doing similar things with the complainant to test their credibility? Sometimes I've seen it with internal investigators, sometimes they don't. Right? They go after the respondent's credibility and they don't do the equivalent with the complainant.
Janice: That's tricky. So before I turn it over to Cory, I'm advocating for you to read the case that I thought was so important I left in my hotel room, let me know the other problems with this investigation. Lots of things that she said they did right. They did an investigation. They did it quickly. They committed resources to it. They had sort of an internal security person do it along with the human rights consultant so they covered both angles. They did write a report. Those are all good things and if you've been following the development of the case law you will know those things are big deals because sometimes employers have not always done them. But she says but there was some problems that ultimately made the investigation sort of unfair. The investigator should have asked more questions. The investigator didn't understand the totality of the incident. She wanted to hear mor about various things. The investigator didn't make clear factual findings. What the investigator did it looked at the whole problem and then delivered kind of an answer at the end but didn't, we talk about it in the office, they didn't show their work. They didn't say, "Okay. So this is what the complainant says, this is what the respondent says, these are the factual findings. This is how I made the factual findings. This is the evidence and now this is the meaning of those factual findings." Cory talks about the what. What happened? And then the so what? Right? And for lots of you internal, the now what? This investigator missed that. Didn't, as I say, consider bias and this is really interesting, and we'll take some more about this with Bill C-65, this was an internal investigation. The Ombudsman didn't say thou shalt never do an internal investigation. That was not her message at all. But what she said is you have to put more safeguards around our internal investigators. They not only have to be competent, which is the language in Bill C-65, but they have to be acting in a structurally independent context. Your internal investigators have to sit somewhere else in the organization. They can't be socializing with their friends who have some say in what's going on. The implication is that they can't sit in HR, actually. We'll maybe have an opportunity to talk about this. We've talked about this before that one of the great opportunities, I think for counsel right now, is to help their clients figure out the structurally independent office, or role, so that you're not looking like an extension of HR or whatever, a finance. It's a really interesting idea.
John: Some employers used a compliance department to do it. Tries to set apart their auditing department to do it.
Cory: The risk there is there's sometimes those compliance investigations are less than familiar with concepts of fairness within the investigation process but that's a conversation for another time.
Janice: It's a fantastic case. You can Google it. If you just look at City of Toronto Ombudsman Investigation of the TTC. It's February of 2019. It's beautifully written. There's just something in it for everybody. So that was my favourite case. Okay, over to you.
Cory: Okay. I'm cognizant of the time so I'm going to move through the facts somewhat quickly here but they're interesting and relevant so I am going to talk about the facts a little bit. This is a case involving a schoolboard. The situation was that a parent brought two children, 11, 12 year old girls, into the schoolboard office on May 3rd, the date is relevant, and raised some concerns about the behaviour of a teacher. The concerns ranged from he put nail polish with highlighters to he gave them a massage, he told one of them he had photos of her in his home. It's kind of a range of concerning behaviours brought to the board's attention. The next day the board interviewed the parent, both students, spoke to the principal and interviewed seven classmates. So they got on it quite quickly. Then the end of the day met with the respondent who was not told what the investigation was about, nor were they given any particulars, brought into a room and said, "You're being investigated. Here are the allegations." and read to this individual the seven allegations against him. I was going to do a little aside here, about how that's not best practice, but I think we've covered it. No information provided in advance so the respondent and their union rep left the room, came back in about 15 minutes later and said, literally, "Yes, no, no, no, no, no, yes." I think that's seven. Essentially, one word answers to the seven alleged things. The ones they were said to have done, by the way, was the highlighter nail polish and the compliments, you look great, I like your shirt, kind of compliments. They denied everything else. So the board tries to ask some more questions, refuses to provide any more information. The meeting ends, the respondent leaves. In the meantime the board now reports the teacher to the Children's Aid Society triggering an investigation under their process. The parent is contacted. The police trigger an investigation there. The board sends a letter to the respondent saying these are the additional questions we want clarified from you and the respondent says, "Given the ongoing investigations that have now been started, I'm not going to provide any additional information." The respondent is suspended without pay as a result of their non-participation in the investigation. The impact that that non-participation had on the board's ability to conduct an investigation. What's interesting is life goes on, summer goes on, the Children's Aid Society investigation is ultimately comes back as inconclusive. The police decline to press charges. No real interaction between the teacher and the board. In July, the teacher writes the board to say, "What am I doing in September. Where am I working in September?" They said there's still these outstanding questions. He said, "Oh. Okay." Then provided detailed long responses to all the outstanding questions and ultimately was exonerated in the board investigation. They concluded that the allegations were unsubstantiated. As a result of the responses. The grievance related to the suspension without pay, and what was nice about this was it was a tidy question which was can you discipline somebody for their failure to participate in the investigation? Period. Normally what happens is you have non-participation plus findings against the person who declined to participate. That's usually how this presents. The decision maker said there's no question that you can draw adverse inference from a respondent's non-participation. There's no question that you can make findings at the end of an investigation absent their participation, if they declined to participate. Can you discipline them for their non-participation alone? What the decision maker said was essentially yes. That the right to remain silent is not all encompassing and not consequence free. And any right to remain silent to the context of workplace investigation may be outweighed by the surrounding circumstances of the conduct at issue and the relationship to the employee's work. What they said was given the nature of these allegations, given this person's role in the application of the Education Act to teachers, given the fact that this wasn't off duty conduct. This was classroom conduct. These circumstances required an explanation and the failure to provide an explanation, in and of itself, was sufficient to ground the discipline. The right to remain silent, as I said, is not consequence free, even if it's understandable sometimes when there's the overlap between these two investigation processes. You spoke about to the criminal piece. I don't know if there's anything to add on that. I'll pass it back. My job is catch up, as you can see.
Janice: I'm going to catch up because I'm going to do the next one in a minute.
Cory: <laughter>
Janice: This is a really interesting case, Maurice Duverger from the Canadian Human Rights Tribunal. It had to do with the interpretation of section 14(1)(c). There's a statutory regulation to make you happy, John.
Speaker2 My favourite part.
Janice: 14(1)(c). Does it make you really happy?
John: It does. Super happy.
Janice: Excellent. Okay. What it says is it is a discriminatory practice in matters related, these are the critical words, in matters related to employment, to harass and individual on a prohibited ground of discrimination. The question is does that apply to this situation where a supervisor sent a former employee, that person had left the building, a series of inappropriate emails including the following comment, "You are the biggest idiot I've had to work with in 25 years so go back to your country because over here you are just a parasite and," it continues, "you can find a room in the psychiatric wing of the hospital of your choice." So we're really hitting all sorts of prohibitive grounds of discrimination there, race, disability, all sorts of things. So what's really interesting about the answer to this question is yes. Yes. When you use the words in matters related to employment are sufficiently elastic to cover that situation. The reason why we include it, you can just see narrowly as case involving statutory interpretation, but to signal to you that there seems to be an ever widening net of employment related, workplace related, nexus to employment, where these general rules apply. So this case reminds me of Schrenk, I think, Schrenk from the Supreme Court of Canada from a few years ago where there was, you may know the facts, but basically there were people who were not in traditional employment relationships with each other. There was a bunch of different sub-contractors, people behaved badly, and still the Human Rights Code of BC applied. If you're sitting there at your desk thinking, hmmm, I'm not sure if I have to investigate. I'm not sure if our policy covers, I'm not sure if the statute or the regulation covers, just know that the underpinnings of that is that the way they're being intended to be interpreted now is pretty expansive. That case is an example of that.
John: Bill C-65 does talk about your requirement to investigate becomes known within 3 months of the employee leaving. So you actually have an obligation to investigate.
Janice: Post-departures.
Cory: That's new.
Janice: That's new which is quite interesting because often these matters come to light after somebody's left because they're not necessarily fearful about losing their job because they've already left. But this case was different because the harassment happened after the person had left. It was not enough to harass while the employment was going on. They had to continue. Lovely. Okay. So is yours the next one?
Cory: Yes. This case involves a CUPE employee who grabbed and squeezed the breasts of a female co-worker in the workplace.
Janice: There's an opening line.
Cory: Just once, which became relevant to the arbitrator, just once.
Janice: Just once.
Cory: The City fired them. The matter went to arbitration. The arbitrator hearing the grievance substituted the dismissal with a 9 month paid suspension. Essentially what the arbitrator
Janice: Did you see Mark's face? <laughter>
Cory: The arbitrator concluded that this behaviour was at the lower end of the spectrum because of a few things. One, it was a single incident. Two, there was no evidence of the complainant was traumatized by having their breast squeezed by a co-worker in the workplace. They referred to it as impulsive ill-thought out isolated incident and they said there's no evidence of persistent conducted creating an unsafe environment. They said it's troubling that the employee did not admit, so the employee never admitted it, it's troubling that the employee did not admit
Janice: Troubling.
John: Troubling.
Cory: the behaviour but the risks of the returning employee are minimal and noted that there was little contact between the complainant and this individual in the past. So, the matter ends up in the Court of Appeal, who rightfully say, "You failed to consider that this action is a sexual assault."
Janice: <laughter> Whoops!
Cory: We laugh but it's kind of shocking that, "You failed to consider that this action was a sexual assault and a sexual assault is sexual harassment in its most serious form." They noted that the arbitrator had used minimizing language. They referred to as a personal assault but also as an incident, as contact between them, and as conduct. In fact, in reviewing the decision of the arbitrator they found that that language alone, that minimizing language alone, was unreasonable. Which is what they were looking for. A few things that the arbitrator noted that I just want to kind of note so that that you don't note it, or you don't let your investigators note it, one thing they said is that this was not, I can never say this, this was not quid pro quo harassment. It was not that type. It was just more about the work environment and therefore it was somehow less serious. The fact is, if there is a connection made between the behaviour and your work conditions, that may be aggravating factor that makes something more serious. But the absence of that character doesn't make it less serious, if that makes sense. They also said, and I hope this is not news, the apparent lack of trauma for the complainant was not an appropriate factor in determining this was less serious. It's the same idea. Evidence of trauma may be relied on to make this seems more serious but there's also no right way for a person to respond to a sexual assault. The evidence of a lack of trauma isn't going to somehow make this less serious. Then they said the fact that there is no evidence of a pattern, and the fact that there was no history of contact between them, misunderstood the test. Because you have to consider the impact of this person's return to the workplace on the workplace as a whole. The duty to keep a safe and harassment free workplace doesn't just apply to the complainant but it applies to all the people in your workforce. The employee had been trained. The employee said they understood sexual harassment. The employee acknowledged that the behaviour, if it were true, would be sexual harassment. Nonetheless, they did it and didn't admit it. The courts said they could not be trusted and that their real concern is about the city's ability to provide a safe and respectful workplace to all, should they be returned after this 9 month suspension, the original remedy of termination was restored.
Janice: What we were talking about on the way over, I'm not sure how we called this bias, but kind of ignorant bias. This is something to watch for, as counsel, but also as the internal, not that you would be ignorant, somebody who's supervising other people, is you see these biases where people, and the original arbitrator was female by the way, so you'd think life experience might give her more insight into what it was like to have a breast grabbed, but I guess not.
Cory: It is a potential form of confirmation bias in which you say, "This isn't a big deal. So everything that I can consider I'm going to interpret it in a way that says this isn't a big deal. Anything that might suggest it was a big deal. I'm not going to pursue or go down that road."
Janice: Or it's just ignorant bias, which is just push aside all the messages we get in this culture that minimize that type of workplace behaviour, and really think about the harm that is caused. Like really think about the offense of grabbing a women's breast in the workplace. Terrible! So it's another way of understanding the cases, that bias that's operating. You're going to do the next one too.
Cory: Yes. This one I am going to do quite quickly. This was a sexual harassment complaint. The employee brought a sexual harassment complaint against a supervisor in the workplace. There was an internal investigation that was conducted and ultimately the allegations were unsubstantiated in the internal investigation. However, the employer at the end of the investigation said, "For 3 months we're going to not schedule you two together." The workplace had sort of a feud, there was like a pub and banquet hall and the conference center so they had some options. They said for 3 months we're not going to schedule you together. So the union, there's seven grievances brought, and the context of these seven grievances is sexual harassment, the union sought interim relief measures within that process. What they saw was, until the grievances had been resolved, they would not be scheduled together. So basically an extension of the 3 month agreement that they'd put in place. The employer fought this, I'm not entirely sure why, and the arbitrator looked at the situation and really just looked at the balance of harm and convenience and said, "There's no harm to the employer of maintaining this during the grievances. You know how we know that? Because you did it for 3 months voluntarily and it was fine. There is a potential harm for the griever, should they be required to work a shift with someone who is their alleged harasser." So the decision was made, seemingly quite easily, to extend these interim measures that were put in place within the context of the workplace investigation, and to maintain those going forward through the context of a subsequent legal process that flows from that investigation. So it's just a good reminder for employers. The investigation might not be the end of it and it may be appropriate to extend interim measures that were in place during the investigation during these subsequent processes.
Janice: Okay. Moving right along. Now this case, we should pause for a moment, we were talking about this before. St. Joseph Health Care Hamilton case. So you know, under the Ontario statutory regime, that if you fail to conduct a workplace investigation, having received the prompt of awareness, the Ministry of Labour can come in and order you to do one. Or order that you have one done by a third party. That's kind of the teeth to the requirement and I think its the, I'm not sure if it's the only statutory requirement in the country that has that, but that's the enforcement mechanism. Since this new regime started a number of years ago they have not been shy in ordering this.
Cory: The timelines can be very tight.
Janice: The timelines can be very tight because we sometimes get emails from these organizations, "Can you do a full investigation in 5 days?" Here's what happened in this case and it's just very interesting. So, it starts by the hospital receiving an order to investigate a complaint of workplace harassment. It did. Then it sent the report to the complainant and her union. The complainant was unhappy. So, again, involve the Ministry of Labour, saying that the investigation was inadequate. The Ministry of Labour issues another order and the order is do it again but use an external investigator. The employer brings an application to the labour board saying, "We're appealing that and while we're appealing that stayed up order." That's the result of it. What's interesting is in considering whether the stay would be granted the adjudicator considered the merit, the overall merit, of the employer's argument that it had basically done an appropriate investigation. What had happened was it investigated some of the allegations but not all of them. Here's what the board's reasoning was and I'll just read it to you because it's very helpful to counsel in working with clients in fashioning mandates. The decision maker says this, "The hospital has explained in detail why it choose the particular internal investigator," so not the external one that was ordered, "why the investigation parameters were narrower than the complainant's complaints, and why it takes the view that these decisions were “appropriate in the circumstances”." There's the term. "Although the Board does not have a large body of case law interpreting section [32.0.7], the words “appropriate in the circumstances” must have some meaning, and the Hospital has in my view made out a strong prima facie case for why its investigation was appropriate." This is really interesting for counsel in fashioning a mandate. Interesting because it leaves open the door to consider does every allegation of every thing that the complainant feels is going wrong in the workplace have to be investigated. And we know, investigations are costly, they're time consuming, they're disruptive to the workplace. I think this case sort of raises opportunity to consider whether do we have to investigate allegations on their face that are just obviously not harassment? I think it gives counsel and clients an opportunity to be rationally discerning of we will investigate some but not all. I will say, in the context of what we're seeing in our practice, is maybe this was an unintended consequence of the Ontario regime, but there are some complainants who are now coming forward with allegations that are voluminous. You know the 160 allegations that are voluminous but everything that has ever made them unhappy in the workplace. Look, happiness in the workplace is a serious thing but not all elements of unhappiness in the workplace are deserving of the full fact version of a workplace investigation. We found that case actually quite interesting. It may be something for you as counsel to lean into when you're thinking about what the mandate is, investigate this but not that.
Cory: It's not uncommon for us to, when we get a call from an employer client to say, "You know, even if some of these allegations are true, we are not going to make a finding that they are harassment. Do you want us to investigate these or do you want us to focus on the ones that meet that threshold?" The answer is different sometimes and sometimes they say, "Do everything. We want to know." Sometimes they want to focus on the things they that have to investigate for statutory reasons or policy reasons.
Janice: Right. Or sometimes they don't understand the difference, really truly, the difference experientially and financially, between A and B.
Cory: Yes.
Janice: So please tell us everything. Okay. Then the bill is $150,000.00 and you wonder why you spent $150,000.00 to look allegations that are 95% not harassment. It's a really important conversation to have for your clients. It's really something to think about. That case gives you the foundation to have those conversations, it seems to me.
Cory: It's still you.
Janice: Still me. Okay. Alright, still me. No, I think it's you. Francis.
John: Sobeys.
Cory: No. Sobeys
Janice: Sobeys. Okay. Sobeys, I'll just tell you a little bit about, very quickly, because we're running out of time, this has to do with a woman who was in the produce section of Sobeys. She had been maltreated by a co-worker for years and years and years and the employer, and as documented in the decision, did not do very much about it. She'd raised complaints, any case that we do involving food or a kitchen has a knife, somebody brandishing a knife, this one included, finally they ended up firing her after she mislabeled a food product. Misusing the best before date. It's an interesting case as long and windy, it's kind of difficult to read but it's sort of a juxtaposition between the heavy hammer of violating something in food safety but not doing anything after years of harassment. Here's what the facts of the, its Small Claims Court so I'm not sure if it what a judge or I'm not sure justice of the peace, anyway, whoever was making the decision, "Why I have fund the plaintiff's termination was untruthful and misleading and unduly sensitive.", she says, "Summarizing my findings of fact, violence and harassment in the workplace prevention policy, Mr. Randall did not follow this policy. Mr. Randall only took notes of complaints when he considered them to be a serious matter." He, again, there's sort of a confirmation bias, he only made notes of things that he personally thought were serious. A couple of years were he ignored HR, ignored complaints that she made. The first knife incident the plaintiff alleges that her supervisor was holding and swinging his trimming knife while yelling at her. While the colleague, respondent, "Oh he's just having one of his days." Took no notes. There's a second knife incident. Took no notes. Then the terminating incident when she was questioned about this food safety infraction it was viewed as being a quasi criminal type interrogation. Which harkens back to an old case from a few years ago involving the GTAA, Arbitrator ... said that is not how you question somebody during an investigation. They're open ended neutral questions. You're not supposed to vigorously go in and then gotcha and cross-examine. So what is interesting from a process perspective is one, this case is at the Small Claims Court, and the Small Claims Court decision maker was very sophisticated in terms of assessing this. She had been paid notice prior to this case getting the to the Small Claims Court, so this $25,000.00 was just about the aggravated damages. This decision maker gave her all of that. By virtue of how she'd been treated. Another reminder that we don't just do these investigations because the statute tells us to, in the civil context we do them because if you don't you're exposing yourself as employer to additional damages. That's why that case is included. Alright. Next.
Cory: Alright. Home stretch. Last two. This is an interesting case out of BC. It is a human rights tribunal decision. It involved discrimination based on race and colour and the context is a correctional officer who identified as black who said they experienced a range of behaviour. Behaviour really did range from racial slurs and name calling and racist nicknames to differential response to performance issues, differential discipline, being stereotyped as slow where there's no evidence to support that stereotype. It's interesting for a couple of reasons. The first is the employee brought their complaint in June 2012. If you're operating in the human rights system, this is from June 2012. Initially they brought the concern. They were interviewed in June 2012. The respondent was interviewed in August 2012. Nothing happened after that so by October the individual had gone to the human rights tribunal. Then they said they were subjected reprisal, called a rat and so by July 2013 they had left the workplace. 2 months after the respondent conducted the final interviews of the investigation, now 15 months later, and found due to a lack of witness recall and the disappearance of some evidence, or the inability to access some evidence, that the allegations were inconclusive. Unsurprisingly. First of all, there is some criticism of the investigation processes being called poor, the timeline being unjustified. What was interesting was that there was a sense in the decision that stereotypes about the respondent were part of the reason for the delay in conducting the investigation. Things like the stereotype that when people complain about racism they're playing quote the race card. That people who say that they're experiencing racism are being overly sensitive to the experiences in the workplace. Some suggestion that the individual had contributed to the interactions and that was somehow part of the justification, I guess, for not immediately taking these concerns seriously. It was some interesting discussion and a good reminder to ensure that when we are doing this, it's all kind of blending together now, but when we're doing this triage at the beginning of the process in deciding how to approach something, ensure that stereotypes are not informing those decisions. That may be you as an individual, that may be you as counsel for your employer clients, keeping an eye out on their decision making and how they seem to be discussing their decision on how to approach these things. The other thing, and I'll just note this because I just don't have time, is if you want to read a really great decision on how you have to sometimes draw inferences from evidence in the absence of direct evidence, when you're trying to determine when someone's experienced racial discrimination in the workplace, to really dig in on the fact that you don't have always have direct eye witness, video tape, smoking gun type of evidence. But you can still find racial discrimination based on inferences draw. This case has a really elegant discussion about kind of the contextual approach to conducting racial discrimination investigations and some reminders of some things to keep in mind at the decision making stage. Right? Race doesn't have to be the factor. It needs to be a factor, for example. No need for intentions to stereotype when you're applying the stereotypes. You don't even have to realize you're doing it if the stereotypes are evident from the behaviour. So I would really encourage you to read this. I thought it was a nice decision and a really good example of how to conduct one of those analyses. Which I know, even as external investigators, those can be the more difficult cases to investigate and make findings. This is a good example for you, if you're interested.
Lastly, this is a situation of the griever and B walking in the hallways, some physical contact, the griever said that the contact was intentional and that B had assaulted them. B said it was accidental. Internal investigation conducted. No findings of an assault so the allegation unsubstantiated. The grievances are that they were assaulted by B and that the organizations internal investigation was tainted by unconscious racist stereotypes. B brings their own grievance about their treatment during the investigation process even though the result was arguably in their favour, but also seeks to intervene in the griever's grievances. Despite the fact that the arbitrator noted that third party participation is exceptional they considered a couple of things in their decision to allow them to intervene, in part. One, they noted that the interest of the employer and the interest that they might be diverge. That the employer wasn't particularly invested in an outcome as to whether or not there was an assault. Because they found there was no assault. They'd taken no action so they weren't trying to defend some disciplinary action they'd taken. They were fairly disinterested in the outcome of that grievance but B was hugely interested in the outcome of that grievance. Second, one of the things that the griever had sought as a remedy was to not work with B ever again. They acknowledge that if the remedy was granted one of them might have to transfer. There was a very significant potential impact on B's employment if the grievance was successful because they might be transferred. For those two reasons the decision was made to allow B to participate as a third party. In the grievance related to whether or not there was an assault but not in the grievance related to whether or not the internal investigation was racially biased. For those of you here who joined us last year there was a case there about a complainant who was seeking to intervene and was given an intervener status, this is kind of the reverse of that where respondent
Janice: That wasn't a wrongful dismissal action.
Cory: Yeah. Different context but this is situation in which the respondent successfully sought to intervene based on the factors that I mentioned.
Andre: Alright. Well, thank you so much. John, Janice and Cory. Much appreciated. For those of you who have a little time please do join us for a cocktail and if you have any questions you could perhaps ask them of our panel. Thank you.