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Fairness in investigations

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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.

In Chapman v York Region Children’s Aid Society, 2021 ONSC 2620 (Div Ct) (Swinton, Baltman, and Kristjanson JJ), in an application brought under the Ontario Judicial Review Procedure Act, the Ontario Divisional Court did just that, and set aside the decision of a Children’s Aid Society (“CAS”) based on what it considered to be a flawed and inadequate investigation under the Ontario Child, Youth and Family Services Act, 2017.

The facts of this case arose in the unique context of a CAS investigation, which includes specific standards for the conduct of investigations. The court’s assessment of procedural fairness, however, provides useful guidance for the conduct of investigations in general, and the principles and cautions identified in the decision may apply to anyone conducting workplace investigations, whether or not the investigation falls within a specific policy or regulatory framework.

The case involved allegations of emotional and verbal abuse by a hockey coach towards the 13- and 14-year-old players on an elite minor hockey team. Prompted by parent complaints, the CAS conducted an investigation, interviewing some players, parents, and the coach, and individuals from the local and provincial hockey associations. The investigation determined that some of the players interviewed were at risk of emotional harm as a result of the coach’s conduct as defined under the legislation and the CAS policies, and a decision to that end was made by the CAS. Based on the CAS’s decision, the provincial hockey association imposed a lifetime suspension against the coach.

The coach successfully challenged the CAS’s decision through judicial review. The court found that the investigation did not meet the requirements of procedural fairness, and further found that the decision concluding that the children were at risk was unreasonable based on the evidence.

With respect to the process, the court noted that the coach was only given broad descriptions of the complaints. He was alleged, in general, to have used inappropriate, obscene, or humiliating language, engaged in name calling or insulting behaviour, that he threw items in the locker room, and that he meted out punishment, such as requiring the players to do push-ups for making mistakes. These allegations were made without reference to specific incidents or specific players, but were rather raised as general allegations of misconduct.

The investigator further did not advise the coach of the legislative or policy standard under which his conduct was being evaluated. Though the legislation and policy provided quite specific language for what would constitute placing a child at risk of “moderately severe” emotional harm, the record indicated that the investigator simply advised the coach that she was determining whether his conduct had a “negative emotional impact” on the children.

The court determined that the process was not fair, applying the test as set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. The coach was required to defend his conduct in generalities rather than having to respond to specific incidents, and without having been advised of the standard to which he was being held, nor of what test was being applied to the impact of his behaviour on the children involved.

The decision arising out of the investigation similarly did not identify the specific players or describe any details of the evidence relied on in determining that the players were at risk of harm, and relied on an alleged prior history of complaints with other organizations, allegations which were never put to the coach, and against which he was not given an opportunity to defend himself. The court described the reasons as “conclusory,” and found that the decision did not meet the obligation to provide adequate reasons as set out by the Supreme Court in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

The court ultimately determined that the decision of the CAS must be set aside, as the result was not reached through a logical, reasoned process. The process followed was, in short, not fair.

It is important to note that in this case there was no determination that the decision of the CAS was, in fact, wrong.  Rather, the finding was that the process was flawed, and the decision could therefore not stand. Though the coach asked the court to substitute its own decision based on the record before it, the court declined to do so, and rather returned the matter to the CAS to determine whether it should conduct a further investigation, this time with the appropriate procedural safeguards in place.

Fairness in investigations includes ensuring a respondent knows the case to be met and has an opportunity to meet it. A reasonable investigation is characterized by neutrality and thoroughness, and includes the sharing of the evidence obtained, and providing an opportunity to respond. Failing to provide fairness undermines the entire investigation – regardless of whether the conclusions were correct.

From the perspective of an investigator, there are many lessons to be learned from this case. The detailed analysis of the court addresses the importance of ensuring fairness in conducting investigations, ensuring investigations are thorough, and the importance of providing reasons which justify the finding made. Furthermore, the fact that the matter had to proceed to judicial review, and was subsequently returned to the CAS to assess anew, meant the issue has remained outstanding for well over a year, and may not be resolved any time soon. An effective investigation — regardless of outcome — could have prevented this remaining a live issue for so long.

This case emphasizes the importance of conducting a fair, thorough, and timely investigation into allegations of wrongdoing. Anyone engaged in investigations would do well to keep these principles in mind.

RSO 1990 c J.1
SO 2017 c 14, Sch 1
Ontario Child Protection Standards (2016), which a CAS is required to follow under s. 31 of O Reg 156/18 under the Child, Youth and Family Services Act, 2017.

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