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A new draft report hits my inbox, waiting for my review. As I click to open the document, I’m immediately curious about the particular situation our investigator faced. Every report is, in a sense, a new story.
In October 2021, my colleague Dana Campbell-Stevens wrote a blog in which she addressed how the law views an individual’s gut feeling about being a victim of discrimination. A recent case from the Saskatchewan Court of Appeal, Thomas v. Saskatchewan Indian Gaming Authority Inc., raises issues respecting the potential implications of an individual voicing such a gut feeling.
In my role as review counsel at Rubin Thomlinson LLP, I review the workplace investigation reports that are prepared by the firm’s investigators to ensure that they are legal defensible. Clients also ask that I do the same for reports that they have prepared internally.
In human rights law, courts and tribunals will often find it useful to determine whether a claimant has established a prima facie case of discrimination. The test requires that the complainant has a protected characteristic under the relevant human rights legislation; that the complainant suffered disadvantage or adverse impact; and that the protected characteristic was a factor or had contributed to the disadvantage or adverse impact.
November 25, 2021, marks International Day for the Elimination of Violence Against Women. As workplace investigators, we know all too well that gender-based violence and harassment is a live issue, the impacts of which can be devastating on the survivor, their loved ones, and the workplace more broadly.
Time has always been of the essence in workplace investigations. In our practice, we go so far as to qualify time as one of the pillars of an investigation. As considerable as it already is, its importance may have reached another level with the recent decision in Toronto District School Board v. Canadian Union of Public Employees, Local 44001. In that case, Arbitrator John Stout found the failure to conduct a timely investigation to be a stand-alone ground to conclude a violation of the Ontario Human Rights Code (“the Code”).
In a decision earlier this year, considered a win for gender-diverse people, the Quebec Superior Court recognized the harms associated with the misidentification of non-binary and trans people on various forms of government issued identity documents (IDs).
Many of us are familiar with the expressions “shop talk” or “workplace banter” in reference to conversations that are presumed to occur in certain predominantly male workplaces, such as a construction site or an industrial worksite, but not in others.
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