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Investigations: Our Top 10 of 2020

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It has become somewhat of a Rubin Thomlinson tradition to host a webinar at the beginning of each year outlining our top 10 workplace investigation cases from the previous year. On January 14, 2021, we hosted our most well-attended webinar yet: The top 10 cases of 2020. Here are the discussed themes and a very brief summary of the presentation.

Inadequate Investigations

These cases discuss inadequate investigations and the possible relief that flows and does not flow as a result of a flawed investigation.

Singh v. RBC Insurance Agency, Ltd., 2020 ONSC 267: A defendant was successful in its motion to strike the plaintiff’s claim of malicious investigation, as part of the plaintiff’s claim against his employer for a number of causes of action. The Court held that there is no cause of action for a tort of negligent investigation when the employer conducts an internal workplace investigation. A claim may still exist where a third party retained by the employer negligently conducted its investigation.

Hrynkiw v. Central City Brewers & Distillers Ltd., 2020 BCSC 1640: In a claim for wrongful dismissal, the Court found that the defendant breached its duty of fair dealing and good faith in the manner of dismissal by failing to conduct a balanced investigation into the plaintiff’s alleged misconduct prior to his termination, and in advancing and maintaining meritless allegations of serious misconduct against the plaintiff. The Court granted aggravated damages, but not punitive damages, to compensate the plaintiff for the mental distress he suffered.

AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai, 2020 HRTO 499. The Human Rights Tribunal of Ontario allowed the applicant’s claim of discrimination and found that the respondents were liable for the unreasonable and inadequate investigation, and for the discriminatory manner in which the investigator addressed the applicant’s complaint of sexual assault. This case is an example of how not to conduct an investigation of a sexual assault complaint.

Luan v. ADP Canada Co., 2020 ABQB 387: In respect of the plaintiff’s action against her former employer, the Court agreed that the respondent (defendant) failed to conduct a thorough investigation (some key witnesses were not interviewed), and improperly concluded that she acted unethically. While the court found in favour of the plaintiff on other grounds, similar to the finding in Singh, the Court concluded that the claim for the tort of negligent investigation failed.

Sexual Harassment and Consent

Two important decisions on sexual harassment were issued by the Human Rights Tribunal of Ontario. Each merits a thorough read. Only a very brief summary follows.

McWilliam v. Toronto Police Services Board and Angelo Costa, 2020 HRTO 574. The applicant, a police officer, alleged that she was subjected to sexual harassment, a poisoned work environment, reprisal, and discrimination because of disability. The Tribunal concluded that the applicant experienced a poisoned work environment and sexual harassment from the personal respondent. In addition to compensation for the applicant, the Tribunal also ordered various public interest remedies.

N.K. V. Botuik, 2020 HRTO 345. In addition to finding that the respondent, the applicant’s supervisor, had sexually assaulted the applicant after the applicant ended a seemingly consensual relationship, the Tribunal held that their relationship was not consensual because the applicant was coerced into the relationship out of fear of losing her job.

Use of Evidence

The following cases discuss the use of evidence during investigations. The first two cases discuss the importance of sharing relevant documentary evidence with respondents. The last two cases find that not all information is shared with a respondent, such as audio-recordings and the identity of all witnesses. These cases are also a reminder of the importance of understanding and following the regime (legislative or policy related) that applies to an investigation process.

Children’s Hospital of Eastern Ontario v. Ontario Federation of Health Care Workers, L.I.U.N.A. Local 1110, 2020 CanLII 6444 (ON LA). The grievor was discharged after an investigation found that he sent sexual Facebook messages to a female colleague. Before the arbitration, it was discovered that the grievor had been set up and that the messages were sent by a third party, and so the only issue left for the arbitrator was whether the grievor was entitled to aggravated damages because of the flawed investigation. It was held that, while there was an investigation flaw in not providing the grievor with the messages during the course of the investigation, this nonetheless did not justify an award of aggravated damages.

Ontario Power Generation v. Society of Energy Professionals, 2020 CanLII 142 (ON LA). The grievor grieved his termination after an investigation concluded that he had an inappropriate relationship with a summer student. The arbitrator held that the investigator’s failure to provide the grievor with the particulars of the complaint and all of the relevant text messages (along with other flaws in the investigation) had an impact on how the respondent responded during the investigation process. As a result, the grievor was reinstated.

College of the North Atlantic (Re), 2020 CanLII 1438 (NL IPC). The College received an access request for records, including a request for the identities of those involved in the investigation, in respect of a College led investigation about the applicant’s behaviour. The Commissioner ordered that the identity of one individual who made a complaint about the behaviour being investigated should be disclosed.

Cadostin v. Canada (Attorney General), 2020 FC 183, aff’d 2021 FCA 21. The applicant, investigated for providing false references and misrepresenting information, argued, among other things, that the investigation was unfair because the investigator did not provide him with the audio-recording of his interviews with the investigator. In a request for judicial review of the Public Service Commission finding that the applicant committed fraud, the Court confirmed that an investigator is not required to provide the record of the testimony of an individual under investigation.

New 2021 Virtual Workshop Schedule – Now Available!

Our 2021 workplace investigation workshop schedule is now available on our website. Click here to view our courses and register today!