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No. We do not think so if what you and your client would like to accomplish is a neutral, unbiased and objective investigation, and a neutral, unbiased and objective report. In a post-Bill 132 world, where investigation processes and reports will be scrutinized more closely, we do not recommend this approach.
When you act for your client, you are the client’s advocate. In this role, you are advancing the interests of your client, and of course, advising them of risks associated with their position, and perhaps suggesting ways in which the problem that has arisen in the workplace can be fixed. The best advocates are informed ones, and like investigators, they gather information and form opinions as to the facts and the law. They ask their clients probative questions, review documents, and identify potential legal liability. This task is “investigation like”, and uses similar tools to that of an investigator. We like to think of these processes as “defence investigations”.
The role of a workplace investigator is fundamentally different. Like the advocate, the investigator gathers information and forms an opinion. However, it is through a very different lens. The investigator is retained to objectively assess a situation. He or she is a neutral. The investigator is not an advocate of one position or another or a promoter of the client’s interest.
Why then would an advocate be tempted to do a workplace investigation for his or her own client? The answer to this question lies in a serious flaw in thinking. Advocates convince themselves that they can be objective. This is simply wrong. As lawyers for their clients, advocates are inextricably tied to the outcome of the investigation in some way, and in fostering the ongoing connections of a relationship, advocates cannot be objective, no matter how hard they try. Consciously or unconsciously, the advocate will want to see an outcome that is favourable to the client. Put plainly, that is a bias.
Of course, there is also the problem of perception. No matter how masterfully the advocate conducts the investigation, he or she will not be seen to be objective. The process the advocate lawyer conducts, as well as the report produced at the end, will be vulnerable to attack by counsel, and the advocate lawyer’s role may be subject to highly critical comments by a judge or an arbitrator should the case become litigious.
Does this mean that an advocate cannot assist his or her client during a workplace investigation process? Certainly not. There are many ways in which lawyers can assist their clients with their workplace investigations. Consider the scenario where the client has decided to conduct the investigation internally. The client may be uncertain as to the elements of a fair process, or their assessment of what needs to be done is wrong. We see no reason why the advocate cannot help here by discussing with the client how they should go about conducting the investigation themselves.
Similarly, the client may not know what the evidentiary test is to make findings of fact, or what evidence might or might not be relevant. An informed discussion between the advocate and his or her client is perfectly appropriate in our opinion.
Where the advocate can be the biggest help is in reviewing the report. He or she can assess whether the evidence supports the factual conclusions, and whether the policy analysis (if there is one) is correct. The advocate can also ensure that the proper policy was actually used. This may sound surprising, but it can be a problem. The advocate can determine whether the report makes sense as written, and whether all the necessary process steps were taken. If they were not, the advocate can suggest how to go back and fix them. However, even in this situation, the advocate cannot suggest to the investigator how to find, or how to decide, because that would compromise the internal investigator’s work.
In a scenario where the client has decided to use an external investigator, the advocate also has a role. First, who should the client use? The advocate’s experience and opinion may be useful in this regard.
Does the client wish for the report to be privileged? While this is always a tricky proposition, it is easier to accomplish when the reporting relationship is from the investigator to the advocate, and not directly to the client. So, the advocate may be helpful in setting up this type of legal relationship.
And, much the same way the advocate reviews the report of his or her client’s internal investigator, the advocate can play the same role here with the external resource. Does the report make sense? Is the conclusion supported by the evidence? While the advocate may not agree with the analysis of the investigator, it is important that he or she understands from the report how the investigator got there, and that the route is defensible. However, there is a caveat. An advocate should not review the report with a view to changing the investigator’s conclusions. That would undermine the investigator’s neutrality and would defeat the purpose of retaining the external investigator in the first place.
Next time your client asks you to conduct a neutral, independent investigation yourself, or you hear yourself recommending that you do so, think again, and say no. Ultimately, this is the most effective way you can advocate for your client.
About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.