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Basic Workplace Investigation Techniques
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
As I noted in my previous blog post, Bill 132 imposes a number of obligations on colleges and universities regarding sexual violence and harassment through amendments to the Ministry of Training, Colleges and Universities Act. As of January 1, 2017, publicly-funded universities and colleges will each be required to have a sexual violence policy in place.
On May 9, 2016, the government filed a Regulation that provides further instruction and guidance regarding the development, approval, and content of the required sexual violence policy. There are significant requirements regarding the development and approval of the policy. Each college or university must establish a process for the provision and consideration of input from a diverse selection of students regarding the policy. They must follow this process in developing the policy, and must also follow this process every time the policy is reviewed or amended.
This process must be published, along with the policy, and both shall be made available to anyone who requests it.
The required contents of the sexual violence policy are listed in section 2(1) of the Regulation and include:
- The college or university’s process for responding to and addressing incidents and complaints of sexual violence.
- Information about the supports and services available at the college or university for students who are affected by sexual violence and the specific official, office, or department at the college or university that should be contacted to obtain such support and services.
- Information about the supports and services available in the community for students who are affected by sexual violence.
- That students are informed that the college or university will appropriately accommodate the needs of students who are affected by sexual violence, and the specific official, office, or department at the college or university to be contacted to obtain such accommodations and that students are not required to report an incident of, or make a complaint about, sexual violence under the process in order to obtain the supports and services or accommodation.
The Regulation also sets out the requirements for the process for responding to and addressing incidents and complaints of sexual violence. Of note, in particular, are the following:
- The process to be followed by persons who wish to report an incident of, or make a complaint about, sexual violence including the specific official, office or department to whom the incident should be reported or complaint be made.
- The process for deciding whether an incident or complaint of sexual violence will be investigated by the college or university.
- That a victim may choose not to request an investigation by the college or university and has the right not to participate in any investigation that may occur.
- The investigation and decision-making processes at the college or university that will take place if an incident or complaint of sexual violence is investigated and the specific officials, offices, or departments that will be involved in each stage of the investigation and decision-making processes.
- Examples of interim measures that may be implemented during an investigation or decision-making process; examples of the decisions that may be made and measures imposed after an incident or complaint is investigated; and the appeal processes that may be available related to decisions resulting from the investigation process.
- Confidentiality measures to protect the personal information of the persons involved in an investigation.
The Regulation requires colleges and universities to undertake a thorough and transparent process in developing and implementing the policy with the outcome being an accessible process with supports for those who are affected by sexual violence.
This new regulation does help colleges and universities begin to work through what they will need to do to be compliant with Bill 132. However, it raises many questions in terms of the operation of the policies and processes dealing with sexual violence. This means that colleges and universities now have many decisions to make when implementing the requirements of this regulation.
Consider, for example, the requirement to appropriately accommodate the needs of students who are affected by sexual violence. At first blush, this sounds straightforward. In reality, this is quite complex. Will accommodation be provided as soon as the information regarding sexual violence is received? What accommodation(s) will be provided? We can imagine that the type(s) of accommodation offered may vary if the student chooses not to report or make a complaint but simply makes an accommodation request as a result of an experience of sexual violence. This is because there will be fewer touchpoints for the college or university with the student and there is no clear outcome or resolution on the part of the college or university. We can also imagine that certain types of accommodation may be part of interim measures during the investigation or become part of the outcome of the investigation. However, what will happen to the accommodation if the investigation does not find that sexual violence occurred? Should it cease? Should the student be referred to the community resources available?
The Regulation also raises a number of process questions in terms of conducting investigations themselves. These too are complex. For example, there must be a process for determining whether to investigate an incident or complaint. What will this process be? Who will be making this decision? What is the standard to proceed? Is this a final decision or will there be a review of some kind? Will the college or university be keeping records of incidents or complaints that it chooses not to investigate? How will the decision not to investigate be communicated to the student? Will the person accused of sexual violence be advised that information was received by the college or university but that a decision was made not to proceed? If so, the college or university may wish to keep the information anonymous unless further allegations are received and additional steps required.
The Regulation also provides that the student may choose not to request an investigation by the college or university and is not required to participate in any investigation that may occur. Isn’t this at odds with the human rights case law that indicates that an institution should investigate once it has information that suggests there has been a breach of the Human Rights Code? How then are these two statutory requirements to be reconciled? The college or university must make decisions whether to proceed at all in this instance or create a process to follow should the college or university wish to proceed. If the student does not participate, will the investigation process be different? A consideration here is that the college or university will not have the opportunity to seek additional information or clarification from the student. It may not be procedurally fair for the accused person to face anonymous information because he or she may not be able to provide a full answer to the allegations or questions.
This leads to concerns about the confidentiality measures that are also required by the Regulation. It is difficult to provide wholesale confidentiality assurances in light of the many possible scenarios and outcomes. Confidentiality cannot be assured should there be a need to involve additional resources. Colleges and universities must determine whether their process or policy will contain provisions for providing information to third parties and under what circumstances. Additionally, it must be decided what information will be shared with a student who chooses not to participate in the investigation. Is it fair or unfair for the student who declines to participate, to learn of the outcome?
Though the Regulation provides guidance to colleges and universities, many questions remain and there are decisions to be made. Colleges and universities will have to try to anticipate the many possible issues that may arise along the way.
About the Author: Toronto Employment Lawyer Andrea Lowes conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Andrea also assists her clients by providing workplace investigation and human rights training to staff at all levels. Andrea’s practice also includes workplace assessments and reviews.