I must admit that pre-COVID-19, I was wary to conduct investigations virtually. This had more to do with my own discomfort with technology and videoconference platforms than anything else. Now, more than six months into the pandemic, it is hard to deny that virtual investigations may be around for the long haul. Below are some of our observations regarding conducting investigations remotely.

Putting parties at ease

In the early days of the pandemic, some of us were reluctant to conduct investigations over videoconference rather than in person, especially where serious allegations of sexual misconduct were at issue, based on our assumptions that the parties would prefer to discuss these issues in-person. We were surprised to find that for some of our investigations, the parties welcomed the opportunity to speak by videoconference. We noticed that some individuals we interviewed were much more at ease over videoconference, as they were able to do the interview from wherever they felt most comfortable (rather than in an intimidating board room or lawyer’s office), and they had quick access to support persons (or pets) in their home. That being said, as with any virtual meetings, there is not always the same level of rapport that can be established as with in-person interviews, and some parties have expressed a preference for the formality that an in-person meeting affords. Once restrictions start to lift, we feel that offering parties the option of in-person or videoconference interviews is in line with a trauma-informed approach

Efficiencies gained

Another upside of the virtual investigation is the speed and efficiency it affords our investigations. Where an investigator carries a caseload of more than one investigation at a time, travelling to various locations for interviews can eat up valuable time. With virtual investigations, we are able to do back-to-back interviews on different files with the simple click of a few buttons, helping to make the investigation process more streamlined and efficient.

Ability to assess credibility

One potential challenge that we braced for at the beginning of the pandemic was how virtual investigations would impact our credibility assessments of parties and witnesses. Six months in and we do not find that conducting interviews by videoconference materially impacts our ability to assess credibility. We feel that this is in large part due to our general approach to assessing credibility, which is to focus on the content of the responses over (often unreliable) non-verbal cues. This appears to also be in line with the impressions of other decision-makers in the employment context. For example, in the recent arbitration decision of Southampton Nursing Home v Service Employees International Union, Local 1 Canada,¹ the arbitrator dismissed the employer’s objection to proceeding by videoconference on the basis of credibility concerns alone. In doing so, the arbitrator relied on another recent arbitration decision, Association of Management, Administrative and Professional Crown Employees of Ontario (Grievor) v. Ontario (Ministry of the Attorney General), where the arbitrator had found that while proceeding in person was a superior method of conducting a hearing, “there are, in general, no natural justice issues inherently raised by videoconferencing.”²

Pitfalls

Of course, there are some pitfalls to the virtual world. Outside of things like connection issues and household distractions (which we feel can often be managed with advance preparation), there are some genuine challenges with videoconferencing. For example, managing the confidentiality of the process, building rapport with interviewees, and managing what could be an interviewee’s discomfort with videoconference formats or inability to access videoconferencing tools.

While it may not be each investigator’s personal preference, virtual investigations are a sound alternative to in-person ones, and the benefits and efficiencies they afford likely means that they will be sticking around in a post-pandemic world. We suggest that when the pandemic is over and restrictions are lifted, the decision of whether to proceed remotely should be made by carefully weighing the above factors.

¹ GSB #2018-1346, 2020 CanLII 32963 (ON GSB), para. 11.

² 2020 CanLII 26933 (ON LA).

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