Recently the Ontario Court of Appeal released its decision in R. v. Sullivan, a case involving the automatism defence. For those who don’t know, this defence can potentially be raised when an individual enters a state of impaired consciousness in which they are capable of acting but have no voluntary control over those actions¹. Through amendments to the Criminal Code of Canada in the mid-90s, the defence of automatism cannot be used for violent offences when the automatism is brought on by self-induced intoxication.
We have all heard of the myth of Pandora’s Box – a box containing many evils that once released into the world could not be put back. As a third-party workplace investigator, I often think of clients having a Pandora’s Box full of information that, if released, could be prejudicial and could lead to an eventual claim of bias.
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…
I was actually going to write this blog last fall but it seems even more timely now. I have done a number of investigations in the past year where some of the allegations and evidence concerned conversations on various instant messaging platforms: Slack, Microsoft Teams and WhatsApp. While I seem to have developed a sub-specialty with investigations in the Tech sector, I confess that the first time a party spoke to me of Slack, I was somewhat clueless.
In the recent past there have been several class actions involving individuals who have experienced sex-based discrimination, sexual harassment, and sexual abuse in workplaces and institutions. But what about the type of harassment that we most often see as workplace investigators – bullying, intimidation and abuse of one’s authority that does not target someone based on a protected ground of discrimination? Can there be a class action united for those who experience of this type of behaviour? Possibly.
It goes without saying that the entire world is currently treading in unchartered waters. The COVID-19 crisis is something that this world has not seen or experienced in many generations, if ever! All industries, businesses and sectors are assessing how to carry on with “business as usual” when the circumstances are anything but “business as usual.” In the wold of workplace investigations, the same questions are being asked.
Ordinarily, a solid workplace investigation rests on four pillars; namely – fairness, thoroughness, timeliness and confidentiality¹. If not handled appropriately, the COVID – 19 crisis has the potential to rock that foundation in two ways – it may impact the fairness and timeliness of an investigation.
This is the first in a series of blogs that I will be writing on workplace whistleblowing. There is not a lot of practical information available on the topic and I want to help shed some light on how employers can be better prepared to deal with employees who blow the whistle.
I am somewhat of an anomaly in that I have a lot of hands-on experience with this subject matter. I have managed whistleblowing programs, conducted intake interviews with whistleblowers and investigated alleged wrongdoing disclosed by whistleblowers.
For this blog, I thought that a good place to start would be to provide general information about workplace whistleblowing given that it is a topic that is foreign to many.
In Ontario, harassment is defined in both the Human Rights Code and the Occupational Health and Safety Act as a course of vexatious comment or conduct that is known or ought to be known to be unwelcome. The term “course of conduct” gives the impression that harassment needs to be made up of multiple incidents. In fact, in some circumstances one serious incident can constitute harassment in the workplace.