While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
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.
As workplace investigators, throughout the investigation process we often field requests from respondents (or their representatives) for additional information or materials. They may request further particulars of the complainant’s allegations, witness names, documents, notes or recordings.
Back in 2019, my colleague, Sophie Martel, examined the important case of Melanie Chapman v. Attorney General of Canada, 2019 FC 975, where a reviewing court found that the respondent was not provided with sufficient information to ensure a fair investigation. This question of what a respondent’s needs to know in order to ensure a fair process recently came up again in the Ontario Superior Court’s decision of Dhillon v. The Corporation of the City of Brampton, 2021 ONSC 4165. Below, I outline the case and the lessons that workplace investigators can take from it.
The investigation at issue was conducted by the Integrity Commissioner (“the Commissioner”) for the City of Brampton under the City’s Code of Conduct and related Code of Conduct Complaint Protocol. The respondent 1, a City Councillor, was alleged to have sexually assaulted the complainant during an overseas work trip. The Commissioner commenced an investigation, which included interviews with the complainant and witnesses. The complainant also provided the Commissioner with an audio recording that she had made of her interaction with the respondent, in which she could be heard repeatedly objecting to the respondent’s advances.
The respondent declined to be interviewed for the investigation, but issued a blanket denial of the allegations.
As required by the relevant complaint process, the Commissioner provided the respondent with an interim report, which included her proposed findings and recommendations for action made to Brampton’s City Council. The respondent replied with procedural and jurisdictional arguments about the investigation and maintained his general denial of the allegations.
The Commissioner found that the respondent sexually harassed the complainant, thereby breaching the City’s Code of Conduct.
The Judicial Review
The respondent brought an application for judicial review to Ontario’s Superior Court of Justice (“the Court”), in which he, among other things, sought to have the Commissioner’s finding that he had breached the Code of Conduct quashed.
Of relevance to this post, the respondent specifically argued that the investigative process was procedurally unfair 2 because the Commissioner did not provide adequate disclosure.
The respondent had requested:
- The audio recording provided by the complainant.
- All relevant documents, including notes of interviews, correspondence and e-mails.
- The information being relied upon in deciding to pursue the investigation including information from any witness who was interviewed.
- The particulars of the allegations against the respondent, including which sections of the Code of Conduct had allegedly been breached.
- A summary of the evidence gathered from other witnesses.
The Commissioner disclosed to the respondent records of the calls and emails that led to her decision to pursue the investigation, as well as the complaint form. She had given an undertaking 3 to the complainant’s lawyer not to provide anyone, including the respondent, with the audio recording. However, she provided the respondent with a transcript of the audio recording and offered him the opportunity to listen to the recording during an interview. The Commissioner declined to provide the other materials requested, based on her duty of confidentiality under the Municipal Act (which establishes the role of Integrity Commissioner) and the Complaint Protocol. The Complaint Protocol required the Commissioner to preserve secrecy over all matters that came to her knowledge in the course of an investigation except as required by law in a criminal proceeding. It also required the Commissioner, when reporting to City Council, to only disclose matters that were necessary for the purposes of the report. As noted above, the Commissioner also provided the respondent with her interim report and invited him to comment on it.
The Court found that the Commissioner provided the respondent with adequate disclosure. According to the Court, the respondent was provided with “the substance of the case” against him and with “sufficient particulars to enable him to respond to the allegations.” The Court specifically noted that the respondent:
- Knew who made the complaint
- Knew what the allegations were
- Knew the circumstances relevant to the allegations, including date, time and location
- Was provided a transcript of the audio recording; and
- Had the opportunity to listen to the audio recording
The Court also noted that the respondent was provided with the interim report, which set out the entire investigation and the Commissioner’s proposed findings.
Lessons for Workplace Investigators
Although this investigation took place in the context of a specific statutory framework, it nevertheless offers broader lessons for workplace investigators who are trying to strike the right balance between fairness and confidentiality.
First, keep the investigation procedure set out in your governing statute or internal policy top of mind. In this case, the Complaint Protocol provided guidance on what was required to be disclosed to the respondent, including the interim report. If you don’t conduct workplace investigations often and, therefore, aren’t familiar with the ins and outs of your procedure, don’t forget to review it carefully before you begin your investigation. Your procedure may set out at least some elements of what must be disclosed to the respondent.
Second, consider fairness to both sides. Here, the Commissioner gave an undertaking not to provide the complainant’s audio recording to anyone. However, she was able to give the respondent a meaningful opportunity to respond to this evidence by providing him with a transcript of the recording and a chance to listen to the recording in an interview. Workplace investigations often involve sensitive evidence that we may be concerned about distributing, but this does not mean that the respondent should not be afforded the opportunity to see and respond to that evidence. Consider whether you can alter the manner in which you normally provide evidence while still adequately protecting confidentiality. Maybe password-protecting a sensitive document is enough or maybe, as in this case, you invite the respondent to review the evidence in your presence.
Third, be reflective. When you find yourself stuck on the question of what to disclose to the respondent, it can be helpful to ask yourself questions like:
- What would I need to know in order to properly respond to these allegations?
- If I was cross examined on my decision to not disclose a piece of information, would I have a good justification?
- If I explained my decision to a trusted colleague or friend, how would they react?
1 The respondent was the applicant in the judicial review. For ease of reference, I refer to him as the respondent to the investigation in this post.
2 There is a difference between “procedural fairness” in administrative decision-making and “fairness” in a workplace investigation. However, the principles of “procedural fairness” can inform what is fair in a workplace investigation.
3 In this context, an “undertaking” is a promise made by a lawyer, which they have a professional responsibility to abide by.
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