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Do I Have to Tell the Respondent Everything?

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Conducting Sexual Harassment and Violence Investigations
3 Dec - 4 Dec at Hyatt Regency Vancouver
If someone at your organization says they’ve been sexually harassed or sexually assaulted, how should you investigate and establish the facts? These complaints can be uniquely challenging for internal investigators — but are more common than ever before. This hands-on, advanced-level training is a must for any frontline staff who may respond to and/or investigate such complaints. Internal investigators leave confident and prepared.

One of the questions we are often asked is how much information should be disclosed to a respondent during an investigation. Some feel that respondents are more likely to provide honest and candid information if they are taken by surprise as opposed to having advance notice of the allegations and supporting evidence. The fear is that with the information, a respondent may have more time to concoct a story in response to the allegations and evidence. The problem with this tactic is that it is premised on an underlying assumption that the respondent has something to hide and is therefore “guilty” of the allegations. Such an approach is not impartial. It also risks being found to be procedurally unfair.

Federal Court Decision

A recent Federal Court decision, Melanie Chapman v. Attorney General of Canada, 2019 FC 975, has weighed in on the type of information that must be disclosed to a respondent in the context of the requirements under the Public Servants Disclosure Protection Act, SC 2005, c.46 and where the process may lead to a finding of workplace wrongdoing with the potential for punishment.

Ms. Chapman was the subject of an investigation after one of the employees in her department committed suicide. While Ms. Chapman requested disclosure including particulars of the allegations against her prior to being interviewed, none were provided other than that they concerned “gross mismanagement (disciplinary actions)”. She was not advised that the allegations concerned the employee who had committed suicide. Her employer, the government of Canada, hired an external investigator to conduct the investigation. The external investigator conducted twelve interviews before interviewing the respondent. The investigator ultimately concluded that the allegation of failing to accommodate a disability (mental health problem) during a disciplinary process was substantiated. The Assistant Deputy Minister – Review Services received the report and accepted its conclusions and indicated that the Deputy Minister had been informed of the results and would direct appropriate corrective action. Ms. Chapman then applied to the court to set aside the decision on the basis that she had been denied procedural fairness during the investigation.

The Court agreed that Ms. Chapman was denied procedural fairness in the investigation and in the decision-making process and set aside the decision to accept the investigator’s finding that she engaged in wrongdoing.

Specifically, the court found that Ms. Chapman was not afforded the following protections:

1. the right to know the evidence against her prior to being examined;
2. the opportunity to provide a full response to that evidence;
3. the right to know beforehand exactly what wrongdoing she is alleged to have committed;
4. the right to call additional witnesses to support her position, or counter evidence already offered; and,
5. the right to know the evidence against her before a decision regarding wrongdoing is reached based on that evidence.

In short, the court found that Ms. Chapman was not given a meaningful right to be heard or given the opportunity to know the case against her at any stage of the process.

My Past Experience at the Human Rights Tribunal of Ontario (“HRTO”)

When I was previously a Vice-chair at the HRTO, it was not unusual to see Applications where one of the parties had also been a party to a workplace investigation. Several complainants who were not entirely satisfied with the workplace investigation also filed Applications to the Tribunal in respect of the same allegations investigated. What surprised me, however, were the number of Applications brought to the HRTO by respondents to a workplace investigation. Having perceived that they had been the subject of an unfair investigation and its outcome (such as termination), these respondents were of the view that the unfairness may have been due to one of the protected grounds of the Human Rights Code. The Application to the Human Rights Tribunal was generally framed along the lines that the unfair investigation process and the ensuing discipline were at least in part based on a protected ground such as race, creed, sex and age.

Takeaways

This decision is a reminder of the importance of procedural fairness towards a respondent during an investigation. The degree of procedural fairness required may vary depending on the nature of the investigation, the possible repercussions and the legislative context. Here are some takeaways:

  • Know the governing statute and internal policies that regulate your investigation. For example, some internal policies set out the information that needs to be disclosed to the parties as well as when it should be disclosed. Some policies also indicate that the parties are to receive and can comment upon certain portions of a draft report.
  • Provide the respondent with a detailed summary of the allegations in writing in advance of the interview.
  • Advise the respondent of the evidence in support of the complaint during the investigation. For example, if a complainant is relying on texts, emails or recorded conversations of alleged harassing and discriminatory comments, the existence of this evidence should be disclosed.
  • Provide an opportunity for the respondent to submit evidence and names of witnesses to support her position or counter evidence already tendered.
  • If additional information is obtained after interviewing the respondent, conduct a follow-up interview with the respondent to allow an opportunity to respond to the new information.

An investigation process that does not provide disclosure to a respondent and fails to give the respondent a meaningful opportunity to respond may be found to be procedurally unfair. It may also lead to further litigation.

Please click here to see the French blog on this decision.