Si l’année 2022 nous a déjà fourni amples sujets de discussions tels que la gifle de Will Smith aux Oscars, ou encore le procès en diffamation de Johnny Depp, la récente décision de la Cour d’appel de l’Ontario dans l’affaire Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 (CanLII), rejoint, à mon avis, aisément ce palmarès.
In October 2021, my colleague Dana Campbell-Stevens wrote a blog in which she addressed how the law views an individual’s gut feeling about being a victim of discrimination. A recent case from the Saskatchewan Court of Appeal, Thomas v. Saskatchewan Indian Gaming Authority Inc., raises issues respecting the potential implications of an individual voicing such a gut feeling.
Fairness is something that we talk about a lot as investigators, although we appreciate that the term can sometimes feel a bit nebulous. Here we have rounded up a couple of recent cases that put the concept into effect, and highlight the importance of ensuring a fair and unbiased investigation…
As workplace investigators in 2020, we routinely deal with issues in investigations that relate to technology, especially social media applications. In any given investigation, some portion of the alleged bullying might have taken place over Facebook, or Slack messages might provide critical evidence of sexual harassment.
Despite this opening sentence in her decision, Tribunal Chair Juricevic found that the complainant’s allegations of sexual harassment and discrimination were not substantiated.
As a workplace investigator, I am sensitive to the fact that conversations around #MeToo in the workplace have been an evolution; people are not always sure about “where the line is” when assessing whether conduct in the workplace amounts to sexual harassment. The British Columbia Human Rights Tribunal recently chimed into this discussion. The decision¹ provides a detailed refresher on the legal test for claims of sexual harassment and draws a line in the sand regarding what is (or is not) considered sexual harassment.
Workplace investigators all do the same thing when they conduct an investigation: they tell participants to keep the investigation and its subject-matter confidential. This instruction helps protect participants’ privacy and maintain the integrity of their evidence. But what happens to this confidentiality requirement when the investigation is over? How does an employer respond when a participant in an investigation says that they want to tell their story, in their own words, to an audience beyond the painstakingly neutral and objective investigator?
In our digital era, investigators must be increasingly technologically savvy. Evidence can take on many forms, including texts, emails and social media accounts. Many employers provide company-issued phones, which, more often than not, happen to be iPhones that are controlled by Apple IDs and rely on virtual storage. As the workplace is further digitized, and as more offices become mobile or virtual, investigations will naturally be dealing with evidence that is stored virtually on a cloud. As the decision District of Houston v. Canadian Union of Public Employees, Local 2086 (“District of Houston”) illustrates, sometimes when evidence is stored virtually, it is not so easy to access.
Sometimes, when I tell people that I conduct workplace investigations for a living, I am met with surprise. “There is a need for that?” they ask, often adding their view that harassment is a thing of the past. When I explain that it is not only harassment that is a problem in Canadian workplaces, but also violence, I am often met with complete disbelief.