I recently presented a webinar with my colleagues, Janice Rubin and Elizabeth Bingham, called, “How to be a Good Second Reader.” The webinar was aimed at those who, like me, review investigation reports. These are some of the highlights of what we discussed during the webinar:

• • the value of having a knowledgeable person reviewing investigation reports before they are finalized – specifically, ensuring the reports can stand up to scrutiny and are suitable for the ultimate reader
  • what the reviewer should be looking for when they review – namely, that the report demonstrates that the investigator had an open mind, was thorough, fair, and arrived at reasonable conclusions
  • the importance of correcting stylistic and writing errors (e.g., typos, grammar issues) as these can lead the reader to doubt the quality of the investigator’s work
  • the need for collaboration and dialogue between the reviewer and the investigator
  • the importance of the investigator accepting feedback gracefully, but of also speaking up when they don’t agree with the reviewer’s feedback
  • the need for the reviewer to let go of the “little things” – the standard is reasonableness rather than perfection

We had also included some examples in our presentation of common report-writing issues and how a reviewer could resolve these. Unfortunately, we were somewhat ambitious with our content and ran out of time. We committed to our audience that we would write a blog to go through these examples. So, here we are. I have set out below five report-writing issues, and proposed solutions for each (apologies in advance for the length of the blog – like I said, our content was ambitious).

Issue #1: In a harassment case, the investigator makes findings of fact after each allegation and for each, states that there is no policy breach. There are no reasons to support each conclusion.

Proposed solution: This scenario raises a concern about the reasonableness of the conclusions that the investigator reached. The reviewer should, first, recommend to the investigator that they include reasons to support their conclusions. Second, the reviewer should speak to the investigator about how they did their analysis — the separate analysis for each allegation suggests that the investigator may not have considered whether the incidents, when considered together, amounted to a course of conduct (which is typically required for a finding of harassment in Ontario). To resolve this, the reviewer could recommend that there be one analysis, at the end of the report, that considers the findings together rather than separately.

Issue #2: In an investigation, the complainant alleged that the respondent made a crude remark to them, which the respondent denies. The report notes that the complainant stated that there were five witnesses who heard the remark. However, the evidence of only one witness is referenced in the report.

Proposed solution: This scenario raises a concern about whether the investigation was sufficiently thorough. As a first step, the reviewer should ask the investigator whether they interviewed the other witnesses. If they did, then that evidence should be included in the report. If they did not, the reviewer should ask why. If there is a valid reason (e.g., the witnesses refused to participate), then this should be noted in the report. If the investigator cannot offer such an explanation (e.g., they did not turn their mind to interviewing the rest of the witnesses), then the reviewer and the investigator should discuss whether additional witnesses should be interviewed. Timeliness, especially near the end of an investigation, should be considered when assessing whether to obtain additional evidence.

Issue #3: The investigator wrote a general credibility assessment in their report that states that the complainant was not credible during the investigation. However, for several of the allegations in the report, there is credible witness evidence that corroborates the complainant’s version of events, and the investigator finds those allegations are substantiated.

Proposed solution: The scenario raises a concern about the reasonableness of the conclusions reached in the report. This is because the corroborative witness evidence suggests that the complainant is, at least in part, credible, which is at odds with the credibility assessment. The reviewer should have a discussion with the investigator to test how they assessed credibility. Typically, when there are inconsistencies arising from a general credibility assessment, the answer is to either: (1) remove it and assess credibility for each allegation, or (2) build qualifiers into the general credibility assessment. A qualifier could be, for example, that the complainant was credible when describing the respondent’s behaviour that targeted a group of employees, but not for allegations relating to the respondent’s behaviour in one-on-one meetings with the complainant. Reasons should be provided to support any such qualifiers.

Issue #4: The report indicates that the investigation began over two years ago. There is nothing in the report to indicate why there was a delay.

Proposed solution: The scenario raises a concern about the fairness of the investigation. While two years to complete an investigation is atypical, there could be an explanation for the delay (e.g., one of the parties was on a prolonged leave of absence). The reviewer should speak to the investigator about why there was a delay. If there are valid reasons for the delay, the reviewer could recommend that detailed process steps be included as these are usually effective at accounting for any delay. The reviewer could also recommend that the delay be addressed “head on” by acknowledging how long it took to complete the investigation and providing reasons to justify the delay.

Issue #5: One of the allegations in a report is about the respondent yelling in meetings. There are five examples of this. The investigator has summarized all of the evidence for these meetings under one allegation, including the evidence of the many witnesses who attended one or more of the meetings. The result is that this allegation is 35 pages.

Proposed solution: While not technically wrong, presenting the evidence in this manner is difficult for the reader – it causes them to have to retain too much evidence before getting to the findings. It also creates confusion about what evidence relates to which incident. To fix this issue, the reviewer can recommend to the investigator to write an introduction at the beginning of the allegation to indicate what the allegation is (i.e., yelling in meetings) and that the complainant provided five examples of this. Each meeting can then be dealt with as a standalone allegation (i.e., each meeting would have a summary of the relevant evidence for that meeting followed by findings of fact).

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While the review process can be tedious, these examples demonstrate that the review process can foster an important sense of teamwork and collaboration between the reviewer and the investigator. This collaboration is what helps to ensure that an investigation report can stand up to scrutiny if it is ever challenged.

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