Rubin Thomlinson | Insights, News & Articles

Building safety in sport – Lessons in shifting culture

September 6, 2019

I am the Harassment and Discrimination Officer for my community sport club. Unlike my club peers who volunteered for the board of directors or fundraising committee and who are busy organizing weekly bake sales, seeking sponsors and promoting online fundraising campaigns, my volunteer role has required little of my time. But that is likely changing and for a good reason. Amateur sport in Canada is undergoing a cultural transformation, specifically around safety in sport and the creation of a safe environment for all participants, particularly children.

A doctor’s examination, a Tiffany’s necklace, and 3 questions to ask yourself before commenting on a colleague’s appearance

September 3, 2019

When I do respectful workplace training, one of the responses I often hear is, “Does this mean I can’t compliment my co-worker’s hair/clothes/eyes/jewelry?” My answer is always an annoyingly lawyerly one: “It depends.”

A comment that pertains to a colleague’s appearance has the potential to create a welcome personal connection. It can also cause harm. A set of recent decisions from the British Columbia Health Professions Review Board (the “Board”) provides some insight on when comments on a person’s appearance are inappropriate.

Investigating the invisible: Examining subtle racial discrimination (Part 1)

August 23, 2019

Overt racial discrimination, such as a racial slur or derogatory comment, can be easy to spot. However, the difficulty for investigators arises where an allegation of race-based discrimination seemingly does not relate to race at all. As discussed further in this post, such forms of discrimination (often dubbed “microaggressions”) are often manifested through subtle, unintentional behaviours that perpetuate stereotypes about marginalized groups.

The question then arises: how can allegations of subtle racial discrimination be investigated, let alone proven, where there is no obvious link to race? In the case study below, we outline considerations for investigators through the following scenario.

Il, elle, iel ou ille? Quel langage neutre utiliser en français? | Gender neutral language in French, does it exist?

August 12, 2019

Lorsque j’étais membre du Tribunal des droits de la personne de l’Ontario, j’ai présidé à une audience qui se déroulait en anglais où une des parties désirait être identifiée par le pronom « they ». Et si l’audience s’était déroulée en français? Est-ce qu’il y a un terme correspondant? On le sait, la langue française n’est pas neutre; tout est forcément féminin ou masculin.

French is not a gender-neutral language, which presents added challenges when referring to individuals who identify as non-binary. There is no corresponding term to “they” in French. As noted by the Ontario Human Rights Commission, deliberately misusing pronouns can be a form of discrimination under the Human Rights Code.

Unfair investigation? No comment.

August 12, 2019

We are now in a world where workplace harassment is taken much more seriously than it was before. Although some jurisdictions in Canada do not have an explicit legal obligation to investigate incidents of this nature, there is now a pressing moral obligation to do so. But when such a moral obligation is unmoored from legal principles or government-issued guidelines, there is a greater risk of unfairness to all parties. An investigation in this context is more likely to be guided by an emotional drive to either undermine those who raise complaints or persecute those who are alleged to have behaved badly, rather than arriving at factual findings from a neutral perspective using a fair investigation process.

With a little help from my support person

July 31, 2019

For most people, participating in a workplace investigation is an unusual departure from their workplace routine. Whether they are a complainant or a respondent, it can be a stressful interaction to sit in a room, with a stranger, and be asked about the details of something that happened, say, ten months ago. One way to address this stress is by allowing a support person to attend the meeting. Indeed, some institutions specifically contemplate the involvement of a support person in their policies. But like anything connected to a workplace investigation you need to think about the support person’s attendance at the interview before it happens.

Sharing the investigation results or: How to stop worrying and have the conversation

July 18, 2019

Employers sometimes ask us for guidance on how to share the results of a workplace investigation with the parties. It’s not difficult to imagine why.

All parties to an investigation—so long as they are employees of the employer—are entitled to learn the results of the investigation, as noted in the Ministry of Labour’s Code of Practice.

Yet letting a Complainant know that his harassment complaint was not substantiated, or telling a Respondent that he engaged in bullying, is difficult information to deliver. Information like this can be physically and emotionally overwhelming for the parties to hear, and both may experience a variety of emotions in response.

Health care and harassment: Now is the time to address unhealthy habits

July 5, 2019

Grey’s Anatomy – the television show and not the textbook – has been running for more seasons than I care to count. All I know is that it has spanned several different stages of my educational and professional life and seems to have as strong a following as ever. Not unlike the legal world, mining the hospital and health care environment for inspiration can yield highly entertaining programming. One archetypal character that frequently appears in both drama and comedic form is the curmudgeonly demanding senior doctor.

How an external investigation actually saved money for an employer

June 24, 2019 | By Cory Boyd

At Rubin Thomlinson we deliver a lot of training on conducting workplace investigations and often the discussion turns to the costs of conducting an investigation, whether it be the monetary costs of an external investigation or the time costs of an internal investigation. These costs are typically balanced with the benefits of conducting an effective investigation, such as allowing employees to be heard, demonstrating a commitment to a respective workplace culture by “walking the talk” of policies, clarifying what actually occurred, and implementing targeted outcomes.

Straight and gay: Two cases of sexual misconduct at Canadian universities

June 20, 2019

Most reported cases of sexual misconduct on university campuses follow a common narrative: a male professor engages in sexual misconduct with female student. This scenario pits sexual violence advocates against institutions and engages the media. But what happens when the narrative changes?

Serious insight for serious situations.