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In Canada, an individual subject to a legal process such as a hearing or trial can request an accommodation connected to a human rights-related ground such as a disability. One common accommodation request is for permission to be accompanied by a support person for assistance, as this allows for meaningful participation in the process. This support person can be a family member, social worker, or, in the case of a disability, a health professional who can physically assist the individual to participate in the legal process. In this regard, workplace investigations are no different.
Depending on a workplace’s policy or practice, vulnerable persons who participate in a workplace investigation may also request the presence of a support person to assist them in the investigation. Their vulnerability may be, for example, because of a disability, mental health concerns, or because they are part of a marginalized group. In our experience, allowing support persons can provide for a more equitable and safe investigation process for vulnerable participants. However, in order to maintain the integrity of the investigation, there needs to be clarity regarding the limits of a support person’s participation in an investigation.
This blog will look at the value of including support persons to further a safe process, as well as the risks associated with not having a clear framework regarding the limits of a support person’s participation in an investigation.
Benefits of including support persons in investigations with vulnerable persons
Canadian legal forums are becoming more cognizant of how their processes are perceived by marginalized communities and the impact of those perceptions on their access to justice. In response, there has been a recent effort to make legal processes more culturally safe. The term “culturally safe” revolves around understanding a participant’s culture, cultural differences, recognizing and respecting those differences, and understanding power differentials.
In the case of investigations, such considerations can be particularly important when investigating issues surrounding discrimination or with participants who are particularly vulnerable due to traumatic experiences. Creating a culturally safe investigation can include thinking critically about where the investigation will be held, the way the investigation is conducted, the investigator’s experience, and what support can be made available to participants, such as affording them the opportunity to select a support person. The following are some benefits of including support persons in investigations involving vulnerable persons:
(i) Sense of autonomy for the participant
When permitted, the ability to decide if and who will be a support person is often one of the few aspects of an investigation that participants can control, offering them some sense of autonomy. For vulnerable individuals, it can be particularly empowering to be able to select someone that they trust to provide support.
(ii) A support person can cause feelings of support by employers
A part of a vulnerable person’s lived experience is often that they feel unsupported. When vulnerable persons are permitted to have a support person of their choice in an investigation, they will likely also feel more supported by the employer in the investigation process. In our experience, individuals are more likely to rely on the support of a union representative, a lawyer, a friend, or a family member, rather than rely on an employee assistance program, to get them through the rigours of an investigation process.
(iii) A support person can assist with administrative tasks
Investigations can feel daunting or cumbersome because of requirements to meet frequently, correspond with the investigator, and provide documentation.
A support person can assist with these aspects of the investigation by taking notes during meetings, communicating with the investigator, and providing documentation to ease the administrative burden for participants.
Limits to the participation of support persons in investigations
While there are certainly benefits to having a support person in an investigation, it is important that the limits regarding their participation are clear. The following are two limits to bear in mind:
(i) A support person should not give evidence in place of the participant
A support person should not speak on behalf of the person being interviewed. The evidence must be given directly by the interviewee.
(ii) A support person’s participation should not harm the individual being supported
A support person should not improperly coach the person who is being interviewed in the investigation as their conduct during an interview should not cause the evidence (oral or written) of the person that they are supporting to be called into question.
In Bronstein1, the respondent hired a subordinate, a member of the Tsilhqot’in Nation, to act as a support person for his Indigenous clients in legal proceedings.2 There was evidence that this support person encouraged these clients to fabricate or embellish their claims. It was argued in that case that the improper conduct of this support person caused harm to those vulnerable Indigenous clients in a process that was intended to address the historic exploitation of Indigenous children.
(iii) A support person cannot also be a witness
A support person should not also be a witness to the issue(s) under investigation. For example, if a participant in an investigation intends to use their spouse as a witness to their version of events, they cannot also use their spouse as a support person. The independence and impartiality of their testimony may be questioned.
A final takeaway is that a support person, though very beneficial, is just one way to make a legal process more culturally safe for vulnerable participants. In the event that a participant’s desired support person is not appropriate, for example because they may be a witness, it is equally important to consider other culturally safe options3 that encourage participants to meaningfully participate with an investigation. Examples of such other options may include involving a trusted member of the community, like an elder, or selecting a meeting space. The primary focus is that participants are given the opportunity to participate in a culturally safe workplace investigation.
1Bronstein (Re), 2021 LSBC 19 (CanLII). In Bronstein, a British Columbia lawyer was found to have committed professional misconduct with his negligent use of the individual that was hired to act as a support person for his Indigenous clients.
2 The clients were Residential School survivors who had experienced physical and sexual abuse under the independent out-of-court assessment process (“IAP”).
3 supra at note 1, Bronstein, para 426.
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