One of the pillars to a sound investigation process is timeliness.  Complaints and allegations of inappropriate workplace behaviour must be taken seriously, and demonstrating this seriousness means giving immediate attention to the matter.  That being said, those of us who receive these complaints and allegations are usually juggling many other things, and it is often not as easy as it seems to “drop everything” to conduct an investigation.

This begs the question: if an investigation must be “timely,” exactly how timely does it have to be?  Is there some fixed period of time in which an investigation must be completed?  Several recent cases involved arguments that the process was flawed because of undue delay, and the decisions shed some light on the answer to this question.

In a case recently blogged about by my colleague, Megan Forward, Saskatchewan Union of Nurses v. Regina Qu-Appelle Regional Health Authority (2017 CanLII 87132), Pablo Davalos grieved the discipline he received after an internal investigation found that he had stolen morphine in the exercise of his nursing duties.  The incident occurred on July 21, 2015, but was not reported to management until 4 days later.  It then appears that, due to vacation schedules, the matter was not brought to the attention of the appropriate person until early September, and Mr. Davalos was first notified there would be an investigation on September 9, 2015.

At the hearing, the union raised concerns about the delay in starting the investigation, and argued that this prejudiced Mr. Davalos’ ability to defend the allegations.  The Arbitration Board agreed, noting that, because of this delay, evidence was lost or no longer available which might have been available to assist Mr. Davalos in demonstrating that the morphine was not stolen, such as the history on the morphine pump and the discarded morphine vial.  The Arbitration Board concluded noting that, by the time Mr. Davalos received notice of the complaint and investigation, “there was nothing [the Grievor] could do to exonerate himself other than to explain his version of the events”. In light of this, they found that he had “suffered some prejudice resulting from the delay.”  For this and other reasons, the grievance was allowed, the discipline overturned, and Mr. Davalos was awarded lost wages, seniority and benefits.

In another recent decision, Green v. Canada (Aboriginal Affairs and Northern Development) (2017 FC 2212), the Federal Court dismissed an application for judicial review arising out of an investigation conducted into allegations of harassment brought by a Director of Research and Policy against one of her subordinates.  In this case, one of the things that the Complainant argued was that her procedural fairness rights had not been respected in the process because the investigation took 27 months to complete.

The Court considered the applicable procedure, the Treasury Board Directive on the Harassment Complaint Process (the “Directive”), noting that it prescribed a 12-month timeframe in which to complete harassment investigations, barring “extenuating circumstances.”  It was noted that the codification of a timeline in a policy establishes a basis for procedural fairness, but that “extenuating circumstances” was an element of that procedural fairness, providing some latitude for investigations to go beyond 12 months if necessary.

Among the matters which constituted “extenuating circumstances” in this case were the magnitude and timeline of the alleged harassment, the complex and multi-faceted investigation, the complicated work dynamics, and intervening health concerns on the part of both the Complainant and the Respondent.  The Court also noted that the Directive required that a qualified investigator needed to be selected to conduct the investigation, and that it took some time to find an appropriately qualified investigator – in this case, five months.

Where we have one case in which a 45 day delay in commencing an investigation was found to be undue, and another where an investigation which took 27 months to complete was found to be reasonable, we can take from this that timeliness is a highly fact-specific determination.  However, any organization looking to avoid an argument that an investigation was flawed for reasons of delay would be wise to consider the following:

• Follow the timelines in the applicable procedure or policy, unless there is language allowing for “extenuating circumstances” or a relaxing of the timelines in appropriate cases. And consider adding the “extenuating circumstances” language to policies where timelines are otherwise fixed.

• Consider building a roster of qualified investigators well before the need arises so that any delay associated with finding experienced investigative support can be minimized.

• More complex investigations (more allegations, more parties and/or more witnesses) will take more time.

• Complaints should be evaluated immediately on receipt to see if there may be relevant evidence which will be lost or no longer available within a short period of time (such as surveillance video or other real-time records or documents), and efforts made to preserve any such evidence.

Generally speaking, justifying any delay in an investigation will likely involve providing a reasonable explanation for the reason why the organization and/or investigator were not moving more quickly.  Recognizing this, investigations should always be a top priority for the organization and investigator and continual steps taken to move the process forward, where possible.

About the Author:  Toronto Employment Lawyer, Christine Thomlinson, is a co-founder and co-managing partner at Rubin Thomlinson LLP.  Christine regularly appears on Best Lawyers and Leading Practitioners lists in Canada and is considered one of the country’s foremost experts on workplace investigation.