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Policy Pet-Peeves: Crafting a Workplace Harassment Policy that will Make Workplace Investigations Easier

September 24, 2020

The first step in any new investigation is to review the workplace harassment policy. As both an investigator and someone who has written workplace harassment policies, I sometimes find myself sighing deeply as I conduct this review, knowing that some parts of the policy are going to make the investigation process harder – not only for me, but for the parties and the employer as well.

Acquiescence, Not Consent: Lessons from N.K. v. Botuik

September 16, 2020

| By Elizabeth Bingham

There are many potentially thorny issues that await an investigator who is asked to make findings about a complainant’s consent to an intimate relationship or to a sexual encounter with a respondent, including the effects of trauma on memory, the potential involvement of intoxication and, of course, grappling with the complicated and nuanced definition of consent itself. The recent Human Rights Tribunal of Ontario decision in N.K. v. Botuik, 2020 HRTO 345, provides a useful illustration of another issue that we might encounter in an investigation that involves a sexual relationship between two employees: distinguishing coerced acquiescence from true consent.

“Cougars” and Contraceptives: The Tricky Business of Borderline Sexual Harassment Cases

September 4, 2020

| By Katharine Montpetit

Some of the more difficult cases of sexual harassment that we deal with as workplace investigators are what we call “borderline” cases — where the behaviour at issue straddles that line somewhere between unwelcome and simply misguided. What types of conduct in the workplace are serious enough to qualify as sexual harassment? A recent decision of the British Columbia Human Rights Tribunal, Prosko v. The District of Taylor and another, highlights some of the challenges these types of cases present.

Conducting Workplace Assessments under Bill C-65 | Part 5

August 31, 2020

| By Cory Boyd, Veronica Howard

The final regulations under Bill C-65 have been released and will come into force, along with the legislation, on January 1, 2021. The Bill and the regulations introduce significant changes to how employers in federally-regulated industries must prevent and respond to incidents of harassment and violence.

Help! I’ve been Asked to be a Witness in an Investigation

August 25, 2020

| By Sophie Martel

Witnesses to whom I have extended an invitation to meet with me often have questions about the process. They want to know whether they are obligated to participate, what the investigation is about, and what will be done with the information they provide.

To Serve And Protect? The Racial Discrimination of a 6-Year-Old Girl By Peel Police

August 18, 2020

| By Melody Jahanzadeh

Racial discrimination can often be subtle and difficult to detect, particularly in fluid and dynamic situations such as those involving law enforcement. But as a recent Ontario Human Rights Tribunal decision indicates, police action that is ostensibly intended to maintain public safety can nonetheless amount to race-based discrimination.

Employer Liability Flowing from an Unreasonable & Inadequate Workplace Investigation

August 4, 2020

| By Dana J. Campbell

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).

What Workplace Investigators need to know about how Anti-Black Racism presents in the Workplace

July 21, 2020

| By Michelle Bird

In a recent blog, my colleague Katharine Montpetit discussed three pivotal human rights cases involving anti-Black racism. These cases demonstrate an advancing awareness of how anti-Black racism manifests in the workplace; arguably, this awareness has grown and changed even since some of these decisions were released.

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