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In our workplace investigation training sessions, we often talk about the four pillars of the investigation process: fairness, thoroughness, timeliness, and confidentiality. The recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”), Young v. O-I Canada Corp., is an example of an investigation under scrutiny due to its lack of thoroughness.
In a recent blog, my colleague Sharon Naipaul reviewed the trilogy of 2019 Supreme Court of Canada sexual assault cases and considered how they inform our work as workplace investigators. Although it was in the early 1990s that new procedure under the Criminal Code limited the admissibility of past sexual history evidence at trial, these cases demonstrate that there is still tension with how to use less overt evidence of prior sexual history. This area is problematic as it continues to be plagued by what have been dubbed as the “twin myths.”
In my role as review counsel, I train others on how to write effective workplace investigation reports. When I review reports, much of what I focus on is readability: how is the report going to sound to the reader? Is it easy to read? Is the reader going to get confused by the report’s organization? I think about this mythical reader a lot; probably too much in fact, and I bet my colleagues are tired of hearing me go on about it.
In a recent webinar offered at Rubin Thomlinson, titled “Primer on Consent,” we enjoyed a highly informative discussion on consent in the context of sexual assault. Part of that presentation included reference to a trilogy of cases from the Supreme Court of Canada (SCC) on the issue of sexual assault and s. 276 of the Criminal Code (“CC”).
I must admit that pre-COVID-19, I was wary to conduct investigations virtually. This had more to do with my own discomfort with technology and videoconference platforms than anything else. Now, more than six months into the pandemic, it is hard to deny that virtual investigations may be around for the long haul. Below are some of our observations regarding conducting investigations remotely.
I have seen some policies that set out a specific hierarchy for reporting a complaint. The order sometimes starts off with addressing the matter directly with the person engaging in the unwelcome behaviour, followed by reporting it to a supervisor, that supervisor’s manager, Human Resources, and in cases where Human Resources is engaged in the alleged wrongdoing, a member of the executive team and/or an independent organization.
Call it a job perk? As a workplace investigator, I not infrequently get questions from friends, family, people I’ve just met, about whether Situation XYZ may be an example of discrimination and/or harassment. A recent discussion about digital blackface led me to think of other possible examples of how anti-Black stereotypes and microaggressions can manifest in the modern workplace.
The Ontario Court of Appeal recently considered this question in a case involving an appeal from a conviction of sexual assault.[1] The decision is an important one for any workplace investigator faced with assessing someone’s credibility.
