The New Tricks and Traps of Human Rights Investigations. Association of Corporate Counsel- Ontario Chapter Program

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1 The New Tricks and Traps of Human Rights Investigations Association of Corporate Counsel- Ontario Chapter Program Norton Rose Fulbright Canada LLP 200 Bay Street, Suite 3800 Toronto, ON June 18, 2013

2 Overview Reasonable Investigations & Familiarity Traps When the Investigator Gets Sued Managing the Third-Party Investigator Corroboration & Credibility 2 Footer

3 Reasonable Investigation & Familiarity Traps Zienelabdeen vs. Best Buy, [2013] HRTO 57 Allegations: Failure to accommodate prayer time; Discrimination based on creed; and Differential treatment relative to South Asian employees. Problem: HR Manager had previous experience with Zienlabdeen and no formal investigation was carried about by Best Buy in response to allegations. Issue: In the absence of a formal investigation was there a breach of the duty to respond and investigate? 3 Footer

4 Reasonable Investigation & Familiarity Traps Zienelabdeen vs. Best Buy, [2013] HRTO 57 Despite the absence of a formal investigation, Best Buy was able to demonstrate it met its duty to respond and investigate by showing: The HR Manager remained open to receiving and reviewing materials submitted by Zienelabdeen. Openness was demonstrated by proof of continued substantive communication in respect of the allegations. 4 Footer

5 Reasonable Investigation & Familiarity Traps Cry Wolf or Cry Foul? In the employment context, human rights complainants frequently have an accumulated performance history A history does not negate rights under the Code. A history does not mean a current complaint is unfounded. Managerial frustration is not an excuse: follow your policies and procedures. The Document Trail Here we go again What UN Convention did we breach this time? Bottom Line: A reasonable investigation is something determined on a case-by-case basis. 5 Footer

6 Reasonable Investigation & Familiarity Traps Cassidy v. Canada Post Corp., [2012] CHRD No day case centered on allegations of sexual harassment and the failure to provide a harassment-free workplace. The individual respondent was found personally liable for a variety of acts of harassment and sexual harassment. Canada Post was found to have done a lot right but the Commission found liability by way of errors within the execution of Canada Post s investigation and response. 6 Footer

7 Reasonable Investigation & Familiarity Traps Cassidy v. Canada Post Corp., [2012] CHRD No. 29 The Commission looked to the timeliness of Canada Post s otherwise reasonable remedial efforts and stated: [para. 190] The lack of a fax machine or scanner at Willowdale D and no automated absence message for [Ms. X s] account also contributed to the miscommunication. As well, while [Ms. X] was away, the envelope with the April 25 complaint that Mr. Tidman mailed was sitting unopened in her office for three weeks. She had no assistant or alternative person in place to deal with urgent matters in her absence, or if she did, Mr. Tidman was not aware of that person. 7 Footer

8 Reasonable Investigation & Familiarity Traps Cassidy v. Canada Post Corp., [2012] CHRD No. 29 The Take Away: In large organizations persons tasked with human rights investigations and/or broader human resources functions may be pulled in a variety of directions but a timely response remains key. Ongoing due diligence at all levels of a policy from legal updates to day to implementation remains the best defense. 8 Footer

9 When the Investigator Gets Sued Ditomene v. Boulanger, 2013 QCCQ 842 (Quebec) Ditomene was a CEGEP teacher accused of harassment by two colleagues. In accordance with its policy, the CEGEP retained an outside investigator, Boulanger to conduct an impartial investigation. Ditomene went off work on disability leave and various challenges occurred in the investigation process. Ultimately, Ditomene was terminated and Boulanger s report was cited as part of the basis of just cause. 9 Footer

10 When the Investigator Gets Sued Justice Laporte concluded: Boulanger did not benefit from any kind of adjudicative immunity. Boulanger owed a duty of procedural fairness to Ditomene which was breached by: A) The failure to provide with Ditomene with copies of the original complaints and applicable policies; B) The failure to provide the factual accounts of witnesses interviewed; C) The failure to provide Ditomene with copies of his own disposition; and D) The failure to provide Ditomene with sufficient notice of interviews, thus depriving him of time to prepare. The Court equated Boulanger s failure to follow the CEGEP s own policy with an infringement of the Ditomene s right to procedural fairness. Damages: $3,000 for moral damages and pain and suffering. 10 Footer

11 When the Investigator Gets Sued Taukar v. University of Western Ontario, [2013] HRTO 597 Arbitrator Swan was appointed pursuant to an internal policy to investigate a discrimination complaint between two unionized faculty members. Taukar alleged Swan breached the Code in the course of his investigation and acted in bad faith by: Ignoring evidence of Japanese culture and communication styles (i.e. ethnic origin, race); Applying too high a standard of proof (clear and cogent vs. balance of probabilities), and Failing to provide adequate reasons. The University was alleged to have discriminated against Taukar by virtue of its reliance on Swan s report. 11 Footer

12 When the Investigator Gets Sued Taukar v. University of Western Ontario, [2013] HRTO 597 Issues: 1) Was Swan protected by the doctrine of judicial immunity? 2) Did Swan s alleged bad faith exempt him from judicial immunity? 12 Footer

13 When the Investigator Gets Sued Taukar v. University of Western Ontario, [2013] HRTO 597 Tribunal Concluded: Swan was a neutral and impartial fact finder who carried out functions that were integral to the alternate dispute resolution process agreed to by the parties (Union and Employer) and was thus protected by judicial immunity. Bad Faith The Tribunal declined to permit Swan to be cross-examined on the alleged acts of bad faith. Judicial Review is pending 13 Footer

14 When the Investigator Gets Sued Can Taukar and Ditomeme be Reconciled? The answer lies in the appointment process: Swan was appointed under a modified union/management process. In contrast, Boulanger was appointed under an employer policy. The Take Away: The Court and Tribunal each emphasize the importance of procedural fairness in reviewing the conduct of an investigation: A) The opportunity for a full presentation of your case; B) Consideration by an unbiased adjudicator; and C) Reasons. 14 Footer

15 The Third Party Investigator Considerations: Scope of the retainer: Legal Advice vs. Fact Finder? Expert retained in contemplation of litigation? Has the investigator been fully apprised of all applicable policies? T.M.I.? Overuse of the same investigator? Benefit of Acquired Knowledge vs. Risk of Bias? 15 Footer

16 Corroboration & Credibility The Human Rights Equation: Credibility and Reliability + Corroborative Evidence + Discrimination is Seldom Overt Standard of Proof OUTCOME 16 Footer

17 Corroboration & Credibility Kowalczyk v. Hudson Bay Company, [2011] HRTO 2064: Credibility is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty and reliability. The first, honesty speaks to a witnesses sincerity, candor and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness perception, memory and ultimately, testimonial recitation. The evidence of even an honest witness may still be dubious. 17 Footer

18 Corroboration and Credibility The Basis for Rejecting a Complaint is a Question of Strategy The Practical Take Away In a given case, which language is least likely to offend the persons involved? Evidence to the Contrary. Insufficient Evidence. Cannot be Corroborated. Alternative Explanation. Evidence does not meet the standard of proof. The Role of the Trier of Fact: Regardless of the outcome of the internal investigation, it ultimately remains a question for the trier of fact. 18 Footer

19 Investigating Harassment in the Workplace Meighan Ferris-Miles Senior Legal Counsel, Scotiabank

20 Overview How to Select the Investigator Internal vs. External Investigators Conducting Interviews Preparing for the Interviews Procedural Guidelines for Effective Interviews Recommended Sequence of the Interviews Uncooperative Participants Liability for Statements Made During the Interview How to Write the Investigation Report

21 How to Select the Investigator 耀 Investigator responsibilities include: Meeting with the individuals involved; Obtaining all necessary information; Making assessments as to credibility of evidence; and Reporting back to the employer. The investigator must feel comfortable or the investigation could be flawed. Poorly run investigations may expose the employer to further liability and unnecessary costs.

22 Reviewing the Investigator s Background Four main factors to consider: The investigator s knowledge and understanding of harassment, human rights and occupational health and safety legislation; The investigator s experience and sensitivity in dealing with employee and employment issues; The investigator s neutrality and lack of bias; and, Whether the investigator suits the situation. * Example: In a sexual harassment case, it is appropriate to have both a man and a woman conduct the investigation to ensure a gender-balanced-investigation.

23 Internal vs. External Investigators Consider the following factors when deciding: Nature and severity of the allegations Who the allegations were made against The availability of the investigator The role of legal counsel The costs and preference

24 Nature and Severity of the Allegations Consider the severity of the case Example: Allegations made in the open such as during a staff meeting Witnesses present and documented evidence relevant to dispute are more readily available May be more practical to have an internal investigator Example: Sexual harassment case A senior more experienced investigator would be appropriate to conduct the investigation given the sensitivity of the allegations

25 Who the Allegations Were Made Against If allegations were made against or involve a senior member of management or against the employee normally responsible for conducting investigations, an external investigator should be retained. An internal investigator may feel pressured to arrive at a conclusion that does not negatively affect the alleged harasser. It may also be appropriate to use an external investigator if; The allegations of harassment have been made against a number of employees; The allegations are made by or against a third party.

26 The Availability of the Investigator Important to ensure that the selected investigator has time to complete the investigation in an expeditious manner. Instances may arise where an internal investigator cannot promptly be relieved of other duties. An external investigator would then be more appropriate to ensure investigation is completed in a timely manner. Directing sufficient resources to an external investigator demonstrates to employees, the parties shared commitment to ensuring that a harassment-free workplace is being taken seriously.

27 The Role of Legal Counsel Legal counsel may assist by: Overseeing the investigation Providing recommendations to the employer based on the investigation Drafting the investigation report Conducting an expert investigation Where a lawyer acts as the investigator, the lawyer may become a witness to any subsequent legal proceeding and may be unable to represent the employer in any subsequent legal proceeding involving the matter.

28 The Costs and Preference There are a number of hidden costs associated with using an internal investigator such as: Time-loss to perform regular duties More time may be required to conduct interviews and ask follow-up questions to each witness May take more time to prepare investigation report as a result of trying to balance other duties, resulting in a delay in providing a response to both the complainant and accused

29 The Costs and Preference continued It is important to consider long-term effects the use of an internal investigator may have on internal relationships. An internal investigator may be permanently and negatively impacted in terms of operational effectiveness. An external investigator can help in avoiding potential allegations of unfairness or bias. An external investigator may also provide valuable feedback on all matters learned during investigation.

30 Conducting the Interviews The same investigator should be used to conduct all interviews If there is more than one investigator, each investigator should be present for all interviews, or at least the key interviews Interviews should be conducted during work hours in a private meeting room If there are any concerns about confidentiality or safety, particularly safety of the complainant, the interviews should be conducted off-site

31 Presence of Other Parties During an Interview An observer may be useful to confirm the investigator s version of the interview Sensitive or potentially difficult interviews should be conducted in the presence of an observer Trade Union Employees may be prudent or required to have a representative- usually a steward- present. Health and Safety situations may require that a representative or employee member of the Joint Occupational Health and Safety Committee may be involved throughout the investigation process

32 Preparing for the Interviews Consider what details of the complaint may be revealed during the interview Only provide information necessary to conduct a meaningful interview Prepare a list of questions prior to the interview The investigator and observer, where applicable, should take notes throughout the interview Notes should include observations along with questions and answers given during the interview Notes should not include personal opinions, comments or judgments

33 Preparing for the Interviews continued The use of a tape recording, although effective for accuracy of the interview is not recommended A tape recorder may make the person being interviewed nervous and reluctant to speak openly If using a tape recording, it must be openly communicated to the person being interviewed and a transcript should be prepared as soon as possible following the interview At the end of the interview ask the person being interviewed if they have any additional comments, remind them to contact the investigator with any new information they may remember and thank them for participating in the process

34 Procedural Guidelines for Effective Interviews Explain the purpose of the investigation when commencing an interview Explain that the investigation is confidential and anything discussed during the meeting is to be kept confidential, this need for confidentiality should be very clearly stressed Leading questions that suggest the answer should be avoided Ask open ended questions such as What happened next? Look for any inconsistencies between stories, go back to the start of the story and ask questions for better clarification

35 Recommended Sequence of the Interviews 1. The complainant 2. The witnesses suggested by the complainant 3. The accused 4. The witnesses suggested by the accused 5. Follow up meeting to obtain clarification on any issues, or to put any allegations of the accused to the complainant 6. A final follow up meeting with the accused if any outstanding issues have arisen following the initial meeting with the accused that require comments or explanations

36 Interviewing the Complainant Meet with the complainant first to hear their story Provide an introduction and overview of the investigator and the investigation process Try to obtain answers to the seven w questions Who - who said or did the alleged conduct What - what was said or done Whom - to whom was it said or done Where - where did the incident occur, use photographs or diagrams if necessary to gain a clear picture of the scene When - when the incident occur (date and time) Why - why did the incident occur (what happened just before and after, was there a pre-existing history, including past incidents)

37 Concerns of Trivial, Frivolous, Vexatious or Bad Faith Complaints If there are concerns that the allegations, even accepted as true, are trivial, frivolous, vexatious or made in bad faith the investigator should advise the senior employee to which they report A decision should be made regarding whether to continue the investigation

38 Interviewing the Accused The objective of meeting with the accused is to provide the accused with an opportunity to respond to the allegations made and to obtain the accused s version of the events Use caution when presenting the allegations to the accused, only reiterate the facts, do not characterize the allegations Ask the accused their version of each allegations from start to finish Try to obtain answers to the seven w questions

39 Interviewing the Witnesses Witness names may be provided by both the complainant and the accused The investigator must decide which witnesses, if any, should be interviewed The investigator should start by interviewing the witness who will likely have the most information or who has information regarding the most serious incidents If witnesses are employees who will be present at the workplace, it is unnecessary to advise them of the interview in advance If the employee does not regularly attend the work-site it may be necessary to schedule the meeting in advance

40 Uncooperative Participants Complainant- If the complainant refuses to cooperate, the employer should give the complainant the option to withdraw their complaint. A complainant can withdraw their complaint at any point in the investigation. If the complainant does withdraw their complaint, the employer should ask to confirm the withdrawal in writing. Accused - If the accused refuses to cooperate, the employer should advise the accused that the decision made will be based only on the complainant and complainant 痴 witnesses versions of the events. The employer should provide the accused with a letter confirming the refusal and explaining the potential consequences of such a refusal. Witnesses - It is generally difficult to discipline an uncooperative witness for their refusal to cooperate.

41 Liability for Statements Made During the Interview Some witnesses may be concerned to share information for fear of being sued for defamation Any information obtained during a Human Rights investigation cannot be used in a defamation lawsuit because it is considered privileged

42 How to Write the Investigation Report It is critical that the investigation report be properly drafted It is recommended that the facts learned in the investigation be kept separate from the conclusions and opinions revealed as a result of these facts It is also recommended that two reports be prepared: The first report should state the facts, evidence and observations The second report should state the opinions, conclusions and recommendations The outcome of the investigation should be communicated to both the complainant and the accused The report should only be circulated among the final decision makers

43 Conclusion 43 Footer

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