Canadian Bar Association 2011 National Administrative Law, Labour and Employment Conference Workplace Investigations: A Management Perspective Kelly Harbridge Senior Labour & Employment Counsel Magna International Inc. 1
Traditional Common Law View Historically Courts have been hesitant to recognize a common law right to natural justice and procedural fairness in the traditional master servant relationship. Despite inadequacy or complete lack of investigation on employer s part, at least insofar as wrongful dismissal jurisprudence is concerned, the common view expressed by Canadian Courts has been: any concerns about the fairness or impartiality of the employer s investigation is effectively removed by the complete and impartial assessment of the facts undertaken by this court at trial (Leach v. Canadian Blood Services (2001) Alberta Q.B.). 2
Traditional Common Law View Increasingly, this traditional view is changing. Significant advances in procedural fairness requirements in the area of administrative law (unionized workplaces), which is being imported into the master-servant jurisprudence. Expansion of statutory obligations to implement workplace complaint procedures and investigative mechanisms. Willingness on part of regulatory tribunals and courts to impose liability for the procedural failure to investigate in and of itself, separate and apart from liability associated with the underlying complaint requiring investigation. 3
An Evolving Landscape The legal and practical considerations which necessitate organizations to conduct comprehensive workplace investigations continue to expand. What initially began as an exercise in proactive risk management has continued to proliferate into a broad array of overlapping contractual, common law and statutory obligations that drive the duty to investigate. Robichaud (1987)(SCC): an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps. 4
An Evolving Landscape Flowing out of decisions like Robichaud, employers have been forced to comply with an increasingly complicated legal framework mandating the introduction of internal complaint and investigation procedures covering a wide range of workplace disciplines: Human Rights (Harassment and Discrimination) Collective Agreements (Grievances, Disciplinary Matters) Occupational Health & Safety (Work Refusals, Harassment and Workplace Violence see Ontario s Bill 168) Corporate Compliance (Sarbanes Oxley) Whistle Blower and Anti-Reprisal Protection (Criminal Code) 5
An Evolving Landscape Regardless of what may drive the duty to investigate, Canadian employers are devoting unprecedented time, energy and financial resources towards investigations. Human Resources Disability Management and Workers Compensation Occupational Health & Safety Environmental Protection Corporate Security Information Technology Internal Audit Privacy Issues Securities Law and Corporate Compliance 6
: Investigations are more art than science. No shortage of practice tips providing different perspectives on what process should be followed. Preliminary Consideration: essential to consider the legal and policy framework that requires the investigation: Is there a specific statutory requirement? Does the obligation flow from a collective agreement? Is there a specific threat of litigation? Exercise in risk management and due diligence? Factual inquiry only or is a legal analysis called for? Policy Requirements (time limits, disclosure, representation, etc.) 7
Understanding the legal and policy context will help answer a number of important preliminary questions: Who Should Conduct the Investigation? Common refrain from the legal profession is that external counsel should be retained to investigate. Not always necessary or practical to do so. Sheer volume of investigations in large organizations often makes this cost prohibitive. Requires a preliminary assessment to determine the nature of the issue and potential risk involved. Considerations of impartiality, credibility and technical expertise. Importance of maintaining confidentiality & legal privilege. 8
Does the Doctrine of Legal Privilege Apply? The protection afforded by legal privilege over workplace investigations is not automatic. Much will depend upon the underlying purpose of the investigation, and also upon who is conducting it. Two main branches of privilege frequently apply to investigations: (a) legal advice privilege; and (b) litigation privilege. Chrusz (1999 Ontario C.A.) dominant purpose test Blank (2006 SCC) zone of privacy for pending or apprehended litigation 9
Does the Doctrine of Legal Privilege Apply? The terms of reference or scope of retainer authorizing the investigation are extremely important. Possible for non-lawyers to investigate where the investigation has been authorized and directed by counsel (see Polystar Rubber and Hydro One decisions involving OHSA and EPA violations). Correspondingly, just because a lawyer conducts the investigation does not necessarily make the investigation privileged. Scope of retainer and underlying documents will be scrutinized to determine the underlying purpose of the investigation to ensure the applicable test for privilege has been met. Exercise caution in how you paper the file. 10
Does the Doctrine of Legal Privilege Apply? Wilson v. Favelle, [1994] B.C.J. No 1257 Lawyer retained to investigate allegations of inappropriate conduct at provincial Ministry of Health. Retainer instructed investigate allegations and unravel the full details... Gower v. Tolko Manitoba Inc., [2001] 196 D.L.R. (4th) 716 Lawyer retained to investigate claims of sexual harassment. Retainer mandated the investigator to prepare a report stating findings of fact, and to provide legal advice based on those findings. Investigation was inextricably linked to the provision of legal advice and was therefore protected from disclosure. 11
Get the Complaint in Writing Can be achieved in a number of ways: formal grievance or complaint form, signed interview notes, etc. Crystallizes the date relevant for internal deadlines and any applicable limitation periods. Provides certainty in terms of the issues under investigation and the scope of the allegations. Helps to avoid the problem of the evolving complaint where allegations become more expansive over time. Also relevant when dealing with overlapping proceedings where allegations later change in an effort to bring dispute under jurisdiction of multiple regulatory tribunals. 12
Get the Complaint in Writing May need to be sensitive to the personal needs of the complainant, in terms of issues like basic literacy, language skills, translator, etc. Exercise caution when dealing with the anonymous complaint or the reluctant complainant. May be an obligation to investigate even where the party complaining is reluctant to cooperate. Even though Human Rights Tribunals formally require a written complaint, the same level of formality may not apply to employers. see Harriot v. National Money Mart, (2010) HRTO 353 13
Consider Possibility of Early Mediation Virtually every Court and Regulatory Tribunal now include this option as part of their administrative process, so why not consider as part of an internal workplace policy? Investigations are expensive, time consuming, and frequently result in a zero sum game (winner versus loser). Many workplace complaints requesting investigation arise due to interpersonal conflicts, misunderstandings and isolated incidents that later escalate into something more serious. If both parties are willing, consider adding Mediation option as part of an internal dispute resolution process. If successful, brings an end to unwelcome workplace behaviour in the early stages, while helping to salvage workplace relationships. 14
Interim Measures Before investigating the merits of the complaint, consider if any interim measures are required. Complainant: is there a need for assistance? (medical, counseling, Employee Assistance Plan, time off work, disability claim, etc.) Helps to better position the organization in terms of optics, may help to reduce potential for damages or liability, and as a responsible employer, it s the right thing to do (see Marineland decision). Interim remedy? (accommodation, separating the parties, etc.) Administrative suspension pending investigation (see SCC decision in Industrial Alliance and risk of constructive dismissal). Preservation of Evidence (OHSA, Rules of Civil Procedure, Sedona) 15
When to Involve the Police? Will depend upon the severity of the allegations and whether the complaint involves serious issues of criminality potential violence, serious harm to others. Will also depend upon the purpose of the investigation: being used to justify disciplinary decision, or to establish due diligence defence against human rights allegations (sword versus shield?). Some risk in delegating all of the investigation to police, especially if disciplinary decision hinges entirely on the result of the criminal justice process (see Clarendon Foundation Inc. and O.P.S.E.U., Loc. 593, (1995) 50 L.A.C. (4th) 17). Delegating investigation to police may satisfy procedural obligation to investigate for human rights purposes (B.L. v. Marineland of Canada Inc., [2005] O.H.R.T.D. No. 30 ) 16
The Legal Standard for Investigations: Reasonableness Moffatt v. Kinark Child and Family Services (1998) OHRT recognized that human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code. B.L. v. Marineland of Canada Inc., [2005] O.H.R.T.D. No. 30 is not what was the correct thing to do, but what was a reasonable course of action. 17