One of our core responsibilities as workplace investigators is to be impartial. The reasons for this are probably obvious: if we were to conduct an investigation with a predetermined idea of the outcome, or if we were to favour one party over the other, our investigation would not be fair, and participants would have no reason to trust in the integrity of the investigation process. That said, knowing that we must be impartial is one thing, actually being impartial and appearing to be impartial to anyone who might review our investigation is quite another. What does impartiality really mean? What does it look like in practice? And how can we maintain impartiality when we have a relationship – whether as an employee or an external investigator – with the organization responsible for the investigation? A recent Ontario arbitral decision, Toronto Metropolitan Faculty Association v. Toronto Metropolitan University,¹ provides some guidance on these questions.

The case

At issue before the arbitrator were two grievances filed by the Toronto Metropolitan Faculty Association (“TFA”) on behalf of two professors at Toronto Metropolitan University (“TMU”). The professors were the respondents in two different workplace investigations conducted by two different external investigators. Specifically, the TFA raised concerns about the potential for bias on the part of the investigators for the following reasons:

• • First, the investigators, who were lawyers, were retained by TMU in a manner that the TFA argued created, or appeared to create, a solicitor-client relationship, which by nature is not impartial.

• • Second, in one of the investigations, the investigator conducted a threshold assessment of the allegations before proceeding to conduct the investigation. In the other, which was an organization-initiated investigation, the investigator drafted allegations based on a letter of concern that had been drafted by several individuals in the respondents’ department as well as interviews with two individuals. The TFA argued that these processes meant that the investigators must have pre-judged the allegations to some extent, leading to a reasonable apprehension of bias or of the investigators not maintaining an open mind.

• • Third, the TFA also argued that, by drafting the allegations, the investigators could reasonably be perceived as acting as advocates for the complainants, which created a reasonable apprehension of bias.

• • Fourth, in one of the investigations, the investigator met with TMU representatives to discuss how to address a situation where individuals had raised concerns about the respondent, but none wished to file a formal complaint. The TFA argued that during this discussion, the investigator provided legal advice to TMU, which would be contrary to the role of an impartial investigator.

The decision regarding the solicitor-client relationship

Most of the arbitrator’s decision relates to the nature of the relationship between TMU and the external investigators and the impact of that relationship on the impartiality of the investigators.

The arbitrator began this analysis by finding that the retainer agreements between TMU and the investigators created a solicitor-client relationship, or at least created the appearance of a solicitor-client relationship. Specifically, he noted that the retainer agreements repeatedly referred to the investigators providing “legal services” to TMU and providing their reports to TMU “as legal counsel” in order to preserve privilege.

The arbitrator went on to find that the solicitor-client relationship (or the appearance of a solicitor-client relationship) created a reasonable apprehension of bias on the part of the investigators, which meant that they could not be seen as impartial. In making this determination, the arbitrator first considered the nature of an investigator’s obligation to be impartial under the applicable collective agreement, the Ontario Human Rights Code, and the Occupational Health and Safety Act. He concluded that, in an impartial investigation, “there must be no reasonable apprehension of bias created by the manner in which [the investigation is] conducted,”² and that the applicable test to determine whether there was a reasonable apprehension of bias is:

…what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude? Would [they] think it is more likely than not that the decision-maker whether consciously or unconsciously would not decide fairly?³

The arbitrator then considered the nature of a solicitor-client relationship, specifically, that “it is the solicitor’s duty to put their client’s interests ahead of all others, and also not to withhold from their client any information they obtain on matters relevant to their retainer.”⁴ He found that this duty is “antithetical” to the investigator’s impartial role in an investigation under the Ontario Human Rights Code or the Occupational Health and Safety Act.⁵ For example, an organization might have an interest in avoiding legal liability in relation to an issue under investigation. The obligation of the organization’s solicitor would be to “consider, advise and act on” the organization’s interests, which could be contrary to the investigator’s obligation to conduct an impartial investigation, with no stake in any particular outcome.⁶

The arbitrator pointed out that there was no issue, in and of itself, with an organization retaining a lawyer to conduct the investigation. Rather, he wrote that the issue with respect to impartiality arises when a lawyer is retained to conduct an investigation “as part of a solicitor-client relationship with the organization [emphasis added].”⁷

The arbitrator also addressed the question of an internal investigator’s impartiality, given that an internal investigator, as an employee, “is paid by the organization and [their] livelihood depends on the organization.”⁸ He noted that the same argument could be made about an external investigator who is being paid by the organization, including a lawyer hired by the organization to conduct an investigation outside of the solicitor-client context. He found that the existence of an employer-employee relationship or an external investigator-client relationship did not automatically mean that an investigator was not impartial and that “the employee who is conducting an investigation or the external investigator who is hired by the organization must strive to be as independent and objective as possible.”⁹ He further pointed out that this is different from a lawyer conducting an investigation as part of a solicitor-client relationship with an organization since the obligations of a solicitor towards their client are “inherently at odds” with an impartial investigation.¹⁰

Other aspects of the decision

The arbitrator did not accept the TFA’s other arguments regarding the investigators’ lack of impartiality or appearance of a lack of impartiality. Specifically, he found that it was not contrary to the investigator’s obligation to remain impartial for an investigator to:

• • Conduct a threshold assessment of the allegations.

• • Prepare a list of allegations.

• • Share with an organization their experience and expertise on issues of investigative practice and procedure.

Takeaways

Following this decision, lawyer-investigators and organizations that retain lawyers to conduct investigations should give careful thought to the language in their retainer agreements. Specifically, such retainers should clearly set out that the lawyer-investigator has been retained to conduct an impartial investigation and should not suggest that the lawyer-investigator is in a solicitor-client relationship with the organization by suggesting, for example, that the lawyer-investigator is providing the organization with legal advice.

This decision also serves as a reminder to all investigators – internal or external, lawyers or not – to consider not only the actual biases they have with respect to a particular investigation, but also how their investigative process and communication with the parties, witnesses, and person/s directing the investigation or client would appear to an outside observer. If an outside observer were to read your email to the respondent or listen in on your discussion with your client, would they think you were biased one way or another? Asking ourselves questions like this throughout the process will help to ensure not only that we remain impartial, but that we maintain the appearance of impartiality.

¹ 2024 CanLII 109523.

² at para. 83.

³ at para. 79, quoting Whitelaw v. Canada (AG), 2024 FC 1115.

⁴ Ibid. at para. 86.

⁵ Ibid. at para. 87.

⁶ Ibid. at para. 88.

⁷ Ibid. at para. 91.

⁸ Ibid. at para. 105.

⁹ Ibid.

¹⁰Ibid. at para. 106.

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