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Does a respondent have a right to know?

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We are often asked whether a respondent in an investigation (the person against whom the complaint is made) is entitled to know the allegations before him or her prior to the investigation meeting. Often, this question arises from the belief that, if given time, the respondent will have an opportunity to craft his or her evidence and that a more spontaneous discussion about problematic behaviour is more conducive to drawing out the truth.

In our experience, this belief is not borne out in reality nor is it in line with the procedural fairness due to all parties – including the respondent – in an investigation process. A number of legal decisions support the view that, as a matter of fairness, a respondent is entitled to know the allegations against him or her prior to the investigation meeting.

For example:

  • In Stone v. DSD Kerr Beavers Dental, 2006 CanLII 21073 (ON S.C.), aff’d 2007 ONCA 543, the employer’s internal investigation determined that an employee had sexually harassed female co-workers, and his employment was terminated for cause. At trial, the judge found that the employer’s method of investigation was unfair to the employee. The trial judge’s primary reason for coming to this conclusion was the employer’s failure to advise the employee of the specific allegations against him.  Rather, the employee was only given a very simplistic and vague description of the claims against him, and was asked to explain his conduct in general terms. The trial judge found that the employee was denied a real opportunity to explain his actions, respond to the allegations, and properly address the situation.
  • In Greater Toronto Airports Authority (“GTAA”) v. Public Service Alliance Canada, Local 0004, [2010] C.L.A.D. 127, an arbitrator awarded damages on account of an employer’s “high handed, arbitrary” manner in which it treated an employee during an investigation process. The arbitrator found problematic that the employee was not provided the reason for the investigation meeting. The arbitrator described the investigation meeting as “superficial” and an “interrogation” rather than a reasonable attempt to discover the truth.
  • In Marchand v. The Regional Occupational Centre Society, 2011 NSLST 29, an employee had been terminated for cause following an investigation into complaints about the employee’s workplace behaviour. The Labour Standards Tribunal (Nova Scotia) determined that the employee was never provided with the statements of his accuser or other witnesses, and concluded that this was a “serious flaw in the investigation in that the accused should be able to have all the information against him to address in order to give a full defence.” The Tribunal ultimately reinstated the employee to his position.
  • In Corporation of the City of Brampton v. Brampton Professional Firefighter’s Association, Local 1068, 2016 CanLII 87624 an arbitrator reinstated an employee to a demoted role following the employee’s termination for cause after an internal investigation concluded that the employee had sexually harassed a female colleague. Among other concerns with the internal investigation, the arbitrator noted that the employer had not put the specific allegations to the employee and provided the employee with an opportunity to respond. The employee had only been asked to provide his recollection of general allegations, shared with the employee at the investigation meeting itself.

What is clear from the cases is that decision makers are paying attention to the manner in which an investigation is conducted – an element of which is how and when a respondent is advised of the allegations against him or her.

While the decisions do not prescribe a specific notice period within which respondents must be advised of the allegations, some form of advance notice of the allegations is required. Moreover, it is not sufficient to advise a respondent of the generalities of an allegation. Respondents are entitled to the particulars of the allegation (i.e. dates, timeframes, specific comments, where available) so that they may make a fulsome response.

With the new requirements under Bill 132 to conduct fair investigations, these investigation processes will likely continue to be scrutinized. As such, employers should be cognizant of the procedural fairness that is due to all parties – including a respondent – if they wish to (1) adhere to the legal obligations under Bill 132; and (2) rely on the findings of the investigation.

Parisa Osborne[1]

 

[1] Since writing this blog, our good friend and colleague Parisa Osbourne has left the firm to pursue the next leg of her legal adventure at PwC.