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In preparing for an upcoming course on bias, I have been thinking about the potential impacts that various biases might have on the respondent interview in a workplace investigation. While investigators often turn their minds to issues such as racial or cultural bias, as well as biases that might flow from a personal relationship, another type of bias is often overlooked. If an investigator begins with an entrenched theory of the case, or if one is formed following the complainant interview, confirmation bias might undermine the quality of the respondent interview.
In R. v. E.C.M., 2013 NSPC 86, the court considered an investigation interview of a teenage victim and wrote:
All too often, these interviews are conducted in an unsatisfactory manner, so as to make clear that the investigator has already formed the conclusion that an offence has been committed and the recorded interview is conducted merely as a checklist item carried out perfunctorily as what seems more often than not to be a routine step…The purpose of an investigation is not to verify that it happened, but, instead, to ascertain what happened. This is done by gathering evidence with an open mind and testing the accuracy of that evidence vigorously. A credible investigation will seek to test, question and challenge the hypothesis rigorously; on the other hand, an investigation that assumes the truth of an allegation – and cherry-picks only that evidence that will support it – will be afflicted by confirmation bias and is the sort of thing that leads to miscarriages of justice.
While this decision related to a criminal investigation, the concepts apply similarly to a workplace investigation. So what can a workplace investigator do in order to ensure that they keep an open mind? There are a variety of options:
- While some background research may be necessary to understand the context for the complaint, limit the information that is reviewed at the start to that which is strictly relevant and necessary to review at the start of the investigation. Additional documentary review can always be done at the end of the investigation.
- Following a review of the complaint and the complainant’s interview, the investigator will have an understanding of the complainant’s theory of the case. Actively seek to identify alternate theories based on different interpretations of the evidence.
- If necessary, seek feedback from a colleague on particular aspects of the evidence, as they will look at it from a fresh perspective and without any hypothesis to be confirmed or denied.
- During the interview, follow the respondent’s evidence, even when it leads away from the initial understanding of the complaint.
This final point speaks to one of the challenges that could potentially flow from preparing and rigidly relying on a prepared list of questions. In R v. ECM, the court wrote:
In this case, the investigator’s questioning of A.B. was remarkable, in the sense that it was done the right way. The investigator approached her task with, indeed, an open mind, seeking pertinent details without asking leading questions…The investigator took her time, and this is one of the best indicia of a proper witness interview; checklist-style sessions are typically rushed, galloping along with a let’s-get-this-over-with lack of sensitivity, with scant attention paid to the need to gather detailed information from the witness, and with little attention directed to the needs of the child. This one wasn’t one of those kinds of interviews. This investigator proceeded carefully and thoughtfully. It is clear that much preparation went into her work.
While a well-prepared list of questions can be both comforting and useful for investigators, it is important to listen to the answers that are provided in response and be willing to move from any prepared list when warranted by the respondent’s narrative. In doing so, an investigator can ensure that they are open to all the evidence before them, and not just that which confirms the hypothesis with which they entered the interview.
About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.