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Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
In a recent decision of the Human Rights Tribunal of Ontario [AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai, 2020 HRTO 499 (CanLII)], the Tribunal highlighted how an inadequate and unreasonable internal workplace investigation by an employer could result in a breach of the Human Rights Code R.S.O. 1990, c. H.19 (Code).
To understand the Tribunal’s conclusion, it is important to know the facts as they pertain to the investigation process. Briefly, AB worked at Cooksville Hyundai, one of the corporate respondents, and during her time there (March 2016), she was sexually harassed by her manager, Paquette, a respondent in the proceedings. AB submitted a complaint about the incident and Cooksville appointed its external human resources advisor as the investigator. The relevant policies outlining the investigation process stated that the complaint detailing the allegations was to be put to the respondent, who would then be invited to reply in writing and the written reply given to the complainant. Upon completion of the investigation, the parties were to be informed in writing of the findings and any corrective action.
The investigator met with AB on April 5, 2016. During the meeting, in addition to reviewing AB’s allegations, the investigator inquired if AB would accept an apology from Paquette; AB refused as she did not consider that to be a satisfactory resolution to the issue. In the absence of any other suggested solutions, AB requested that she report to another manager. At the conclusion of their meeting, the investigator informed AB that she [the investigator] needed to speak with Paquette to obtain his response and that she would thereafter contact AB regarding next steps in the investigation.
On April 6, 2016, the investigator asked AB to provide a written account of the details that they had discussed at their meeting, which AB did on April 8, 2016. The investigator met with Paquette on the same day that she received AB’s written account, although it is not clear if she met with him before or after receiving this. In any event, what is clear is that the investigator did not put substantial components of the allegation to Paquette for his response. It was the investigator’s view that it was the responsibility of the police to ask Paquette those questions and not hers.¹ The investigator also did not ask Paquette for his written response, despite the requirement in the policies to do so.
Within 30 minutes of receiving AB’s written account, the investigator responded to AB and stated that, “Further to [their] conversation and after completing the investigation,” they wanted to accommodate AB’s request to report to another manager. AB felt aggrieved by the investigator’s response as she was not aware of what kind of investigation could have been done and how it could have been considered complete. AB felt the onus of resolution was placed solely on her as the only corrective action was compliance with her request to report to another manager. AB stated that she approached her employer for guidance and help, but ultimately felt “ripped off” as she was uncertain of the meaning or significance of the investigation in the whole scheme of things.
The investigator did not write or share her conclusions of the investigation with either of the parties. The investigator stated in the hearing that she had summarized the allegations, her analysis and her conclusions but only for her own purposes as she was not obligated to make or share her notes. At the hearing, the investigator testified that, having heard from both individuals, she was not in a position to determine whose version of the events was accurate. Following the investigator’s email to AB, there was no further communication regarding the investigation. Ultimately, AB continued to encounter Paquette at work eventually resulting in her asking to be transferred (to what was a lower paying job).
Some time later, AB contacted the investigator, after having been “triggered²”, to express her emotional distress and her dissatisfaction with the fact that there had been no ramifications for Paquette’s actions. The investigator responded and told AB that AB’s allegations were investigated; both AB and Paquette admitted that they were drunk; and that only AB recalled “sexually pleasuring” Paquette, which the investigator said that Paquette denied. AB took this as a “slap in the face.” Moreover, as far as the investigator was concerned, the fact that AB was no longer required to report to Paquette was sufficient and in accordance with AB’s request.
In the HRTO proceedings, AB alleged, amongst other things, that the corporate respondents violated her rights under the Code by failing to properly investigate and address her allegations against Paquette.
The Tribunal ultimately determined that the corporate respondents were in violation of their obligation to ensure equal treatment under the Code. The Tribunal had the following negative comments about the investigation that was conducted:
1. The investigator did not refer to the relevant policies during the investigation and she did not consider whether Paquette had violated any policies (even though she acknowledged that that was part of her role).
2. The investigator did not follow the procedures outlined in the relevant policies, including the requirement to put AB’s allegations to the respondent for a response or speak to anyone else who may have information. The Tribunal considered the investigator’s failure to do so to be an indication that the investigator did not take AB’s allegations seriously.
3. The investigator provided no details of what she had concluded and/or how she had completed the investigation. The investigator indicated that she could do nothing more because the parties had different versions of events. The Tribunal said that the investigator’s inability to determine whose version of events was accurate was a result of her own failure to conduct a proper investigation.
4. The investigator did not act with sensitivity. In response to AB’s concerns regarding the inadequacy and unfairness of the investigation, the investigator gave a very insensitive response which ultimately amounted to the investigator blaming AB for her circumstances and effectively worsening AB’s experience. The Tribunal commented that AB ought to have been able to expect the investigator to be neutral and trustworthy.
The Tribunal ultimately held that the investigation was “seriously flawed and conducted in an insensitive manner,” which had the effect of depriving AB of respect and the right to be ensured a poison-free work environment. The Tribunal affirmed the human rights jurisprudence that has read the obligation to conduct an investigation into the right to equal treatment in employment under the Code.³ By extension, the failure to properly investigate was found to be a breach of the Code.
This might be viewed as an extreme case in that the average investigation would not be so inherently flawed. However, if one is not mindful of potential unconscious biases or even adherence to the terms of the relevant policies that inform an investigation process, similar pitfalls are a risk. Therefore, here are some things to keep in mind.
5 KEY TAKEAWAYS
1. Review the investigation process outlined in the applicable policies before commencing the investigation and ensure that there is consistency in the process followed for all of the parties.
2. Ensure that all of the allegations are put to the respondent and that they are given an opportunity to respond.
3. Ensure that factual findings are grounded in evidence and that reasonable steps have been taken to obtain the relevant evidence. This might include speaking to any and all persons who may have information relevant to the investigation. Never underestimate the value of witness evidence, as it is often the key to resolving conflicting evidence between the parties.
4. Ensure that the parties are aware of the steps taken in an investigation process and that they are ultimately informed of the findings and any steps taken in furtherance of those findings.
5. Be ever mindful of any unconscious biases and ensure that communication with the parties is always respectful, understanding and most importantly, neutral.
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1 Paquette was also subject to criminal charges for the sexual assault on AB.
² AB was triggered by a topic that was discussed at a seminar she attended.
³ Laskowska v. Marineland of Canada Ltd., (2005) (“Laskowska”), 53 C.H.R.R. D/262, 2005 HRTO 30, at paras. 51-53.