Rubin Thomlinson, Author at Rubin Thomlinson

Do I have to tell the respondent everything?

November 8, 2019 (December 31, 2020) by Rubin Thomlinson

One of the questions we are often asked is how much information should be disclosed to a respondent during an investigation. Some feel that respondents are more likely to provide honest and candid information if they are taken by surprise as opposed to having advance notice of the allegations and supporting evidence. The fear is that with the information, a respondent may have more time to concoct a story in response to the allegations and evidence. The problem with this tactic is that it is premised on an underlying assumption that the respondent has something to hide and is therefore “guilty” of the allegations. Such an approach is not impartial. It also risks being found to be procedurally unfair.

#MeToo at two – Has anything changed?

November 6, 2019 (December 31, 2020) by Rubin Thomlinson

A few weeks ago, I was part of a panel on TVO. The discussion centred on what had changed in the two years since the #Me Too Movement had begun. Much to my surprise, I seemed to be the sole voice on the panel who thought that the needle on the sexual harassment dial had moved at all.

At the risk of sounding like a Pollyanna, let me explain why I believe things have changed. I do so from the vantage point of someone who leads a large team of lawyers, lawyers who investigate complaints of sexual harassment across the country, in English and in French, and in every conceivable type of workplace.

Where to meet? Tips on choosing interview spaces

November 5, 2019 (September 21, 2020) by Rubin Thomlinson

I recently did several investigations which involved a bit of creativity when choosing the interview location. The situations made me think of how an interview space can affect a participant’s experience and perhaps the quality of evidence that is elicited during that meeting. Below, I offer some thoughts to consider when choosing an interview space.

The interview is an opportunity for the investigator to neutrally gather evidence. It is also an opportunity for the interviewee to talk about their understanding and observations of the situation at hand. The interview is often one of the key, if not the main, sources of information that an investigator will have.

Investigations involving health care providers – 5 questions to ask at the start

October 23, 2019 (December 31, 2020) by Rubin Thomlinson

Being the daughter of a retired health care provider, I observed from an early age the balancing act of providing patient-centred care while wanting to do one’s best in a workplace that can be emotionally charged, fast-paced and ever-changing (I know that these descriptors not only apply to working in health care generally, but could apply to an employee’s experience in just one shift).

Starting an investigation when no one asked (or wanted) you to

October 21, 2019 (December 31, 2020) by Rubin Thomlinson

You hear things. A whisper here and there. An overheard comment about a colleague crossing the line with another colleague. Repeatedly. Or maybe it’s more than a whisper. Maybe it’s more of a resounding chorus. And the voices are all offering alarmingly similar and compelling descriptions of a colleague engaging in a pattern of behaviour that – according to multiple reports – is decidedly unwelcome. The information may even be set out in writing in a formal letter of complaint. But the author of the letter has chosen to remain anonymous.

“She told you what?!” How to use confidant evidence in a workplace investigation

October 17, 2019 (September 21, 2020) by Rubin Thomlinson

When we ask complainants in a workplace investigation whether there were any witnesses to the events that form the basis of their allegations, it is not uncommon to hear, “Well no, but I told my partner/best friend/colleague everything.” This is especially true in cases of sexual harassment or assault, where the events in question often take place in private, without witnesses present.

Too scared to say #MeToo: Are you the silencer?

October 4, 2019 (December 31, 2020) by Rubin Thomlinson

I recently attended a talk at Hot Docs on the book ‘Had it Coming: What’s fair in the Age of #MeToo’ authored by journalist Robyn Doolittle. In this book, Doolittle challenges the social attitude around sexual behaviour and sexual assault. She advances the notion that the “laws aren’t the problem,” as Canada has some of the most progressive sexual assault laws. Instead, the problem is our attitudes, more particularly the negative attitudes of police officers and those in the justice system, and the myths that pervade those institutions. These attitudes have adversely impacted the way sexual assault complaints are handled in Canada.

Dois-je tout dévoiler à la partie intimée? | Do I have to tell the respondent everything?

October 2, 2019 (September 21, 2020) by Rubin Thomlinson

C’est une question que l’on nous pose souvent pendant notre formation sur les techniques de base en matière d’enquêtes au travail. Devons-nous vraiment tout dévoiler avant l’entrevue avec la partie intimée? Certains participants pensent que la partie intimée fournira des informations plus spontanées et candides s’il y a un élément de surprise pendant l’entrevue. Si la partie intimée reçoit une information détaillée, elle aura ainsi plus de temps pour inventer une histoire qui se conforme aux allégations et aux éléments de preuve. Cette tactique, toutefois, se fond sur une supposition que l’intimé cache quelque chose et est donc « coupable » de ce dont il est accusé. Cette approche n’est pas impartiale et peut mener à une conclusion que la partie intimée a été privée de son droit à l’équité procédurale.

Serious insight for serious situations.