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In celebration of our twentieth anniversary, we have created the Rubin Thomlinson LLP Workplace Human Rights Award, in partnership with Toronto Metropolitan University’s Lincoln Alexander School of Law. Learn More

Serious insight for serious situations.

Serious insight for serious situations.

Investigation trends: Managing managerial discretion

Most organizations allow employees to use some degree of discretion (i.e., use their own judgement) when making hiring, promotional, and pay decisions. I have noticed a trend in several of my recent investigations, which is that the exercise of managerial discretion became a source of friction and …

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A refresher on the “duty of care” – Who do we owe it to? | Petit rappel sur le « devoir de diligence », à qui est-il dû ?

Workplace investigations have been around for quite some time as a way for diligent employers to address potential issues hindering the workplace. If, as a result of its long-standing use, they no longer appear cryptic in the eyes of some employees and employers, they still carry a perfume of mystery and elicit questions for many others. In my practice, most of the questions I hear from parties and witnesses in an investigation are procedure-based, pertaining to confidentiality or the length of the process.

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Alarming allegations, child witnesses, and bias: Lessons from a public school investigation

Conducting an investigation that is thorough, fair, confidential, and timely is, to speak plainly, complicated work. Investigators must make many difficult judgement calls during the process, including which witnesses to interview, which records, texts, and emails to review, and how to weigh the various types of evidence when making findings of fact.

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Fairness in investigations

Most workplace investigations are not subject to independent review; though they may be considered by a court or tribunal, this would usually be in the context of a separate legal proceeding, e.g., a wrongful dismissal action or a human rights case. Certain investigations, however, may include the exercise of a statutory power of decision, which may give a party a right to pursue a judicial review to challenge the conclusions reached. In such a case, the court may directly address issues such as fairness and the reasonableness of the decision reached in the course of an investigation.

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