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Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
Employment & Labour Law: Channeling Your Inner Sherlock Holmes
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Employment & Labour Law: Channeling Your Inner Sherlock Holmes

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Presented by David Law - Partner, Gowlings | Ottawa …

Presented by David Law - Partner, Gowlings | Ottawa
Human Rights Code
Complaints of harassment/discrimination
Complaints of Reprisal
Termination or Discipline based on Misconduct
Occupational Health and Safety Act
Violence/harassment
Fatality/Critical Injury/Accident/Explosion/Fire
Occupational Illness
Workplace Safety and Insurance Act

Published in: Law, Health & Medicine, Business
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  • Gupta
  • Gupta
  • gupta
  • Gupta
  • gupta
  • gupta
  • Illingworth
  • Illingworth
  • Illingworth (Form 7)
  • Illingworth
  • Gupta
  • Gupta/Illingworth to join
  • IllingworthGupta (example of linkedin/internet carriers/blackberry)
  • Illingworth
  • Illingworth/Neena to chime in
  • Gupta/Illingworth – depending on legal context – may or may not be appropriate (legal/practical)
  • Illingworth
  • Gupta – that fact-finding not privileged
  • Transcript

    • 1. 1 Channeling your inner Sherlock Holmes! David Law
    • 2. Why do you have to investigate? • Human Rights Code – Complaints of harassment/discrimination – Complaints of Reprisal • Termination or Discipline based on Misconduct • Occupational Health and Safety Act – Violence/harassment – Fatality/Critical Injury/Accident/Explosion/Fire – Occupational Illness • Workplace Safety and Insurance Act 2
    • 3. When do you need to investigate? • Human Rights Code – Investigation triggered when there is an allegation of conduct that, if believed, could constitute • Discrimination • Harassment • Reprisal – Failure to investigate is an independent breach of the Code, even if there is no actual breach of the Code 3
    • 4. Common law duty to investigate • When considering termination for cause or misconduct • Failure to investigate can expose employer to additional damages 4
    • 5. Punitive damages • Downham v. County of Lennox & Addington – Downham a Salvation Army minister – Assisting a convicted pedophile released from jail – Accused of trying to get preferential access to social housing for pedophile – Terminated 5
    • 6. Punitive Damage • No one interviewed Downham • No one advised Downham of the information on which County was relying • Relied on distorted and false information • Generous Notice and $100,000 for punitive conduct 6
    • 7. Dishonest investigation • Pate v. Township of Cavendish-Galway and Harvey • Pate had been 10-year Building Officer • Accused of dishonesty • Township found to be guilty of malicious prosecution (deliberately withholding exculpatory evidence) • $75,000 in aggravated damages and $450,000 in punitive damages 7
    • 8. 8 Occupational Health & Safety • Fatality or Critical Injury s. 51(1): Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.
    • 9. Notice of Accident – Non-Critical s. 52. (1) If a person is disabled from performing his or her usual work or requires medical attention because of an accident, explosion, fire or incident of workplace violence at a workplace, but no person dies or is critically injured because of that occurrence, the employer shall, within four days of the occurrence, give written notice of the occurrence containing the prescribed information and particulars to the following: 1. The committee, the health and safety representative and the trade union, if any. 2. The Director, if an inspector requires notification of the Director.
    • 10. 10 Each applicable Regulation (Industrial, Construction, etc.) has its own requirements. Generally, a report must include: – name and address of the constructor and the employer; – the nature and the circumstances of the occurrence and of the bodily injury sustained; – description of the machinery or equipment involved; – the time and place of the occurrence; – name and address of the person who was killed or critically injured; – names and addresses of witnesses – name and address of the attending physician. – steps taken to prevent recurrence Contents of the Accident Report
    • 11. WSIA Reporting Reporting an injury under the Workplace Safety and Insurance Act s. 21. (1) An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages. (2) The notice must be on a form approved by the Board and the employer shall give the Board such other information as the Board may require from time to time in connection with the accident. 11
    • 12. Internal Investigation and Reporting Overview: • Things to consider in preparing investigation reports – Who should investigate? – What should the investigation consist of? • Pitfalls and Traps in preparing Reports • Privilege 12
    • 13. Who should investigate? FAIR, QUALIFIED, THOROUGH AND COMPETENT • Should never be person who reports to someone who is closely involved (Complainant, Respondent, Witness) • Qualified (subject matter expertise, training) • Available (tight timelines) • Can write and present comprehensively 13
    • 14. HALLMARKS OF A GOOD INVESTIGATION • Clear what is being investigated • Consider warning as to importance of confidentiality • Witnesses interviewed, statements drafted and confirmed by the witnesses (signed statements the best) • Follow-up questions asked • Comprehensive • No one feels railroaded 14
    • 15. A NOTE ON EVIDENCE • PRESERVE EVIDENCE – Accident site – Damaged equipment – Electronic evidence (may require IT expert/imaging technology) • Cellphones, email, hard drives, GPS, telephone records – Documents • Personnel file, receipts, correspondence, notes 15
    • 16. IS THERE A RIGHT TO REPRESENTATION? • In unionized settings, union member likely to have right to union rep; • In non-unionized settings, parties do not have right to representation, but often permitted • Employer does not have to pay for representation 16
    • 17. Preparing the Report • Audience – who is going to read this? – Now, who else is going to read this? – Are the objectives of the reader the same as those of the author? – What is the expertise of the reader? – What is the author’s expertise? Are they qualified to speak to certain aspects of the report? 17
    • 18. Preparing the Report • Consider circulating drafts or parts of report setting out parties’ version of events • Weigh the Evidence – Fair treatment of conflicting evidence or alternate theories • Tone • Writing on the “Why” – Try asking why five times 18
    • 19. 19 • Just because lawyer investigated does not mean that the report is privileged • Issue: what is the purpose or reason for report? • Fact-finding or Legal Advice • Contemplation of Litigation Privilege • Solicitor Client Privilege • Establishing and maintaining privilege • Circulation • R. v. Bruce Power Inc. Privilege
    • 20. 20 Privilege R. v. Bruce Power Inc. (2009 ONCA) – Investigation report was privileged, but came into possession of the prosecutor – Investigation report contained items that “could well be used to the disadvantage and prejudice of the defendants” – Court questioned potential effect on witness testimony and prosecutor’s strategy
    • 21. 21 Privilege R. v. Bruce Power Inc. (ONCA) • “When the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.” • In this case, the evidence did not rebut the presumption and the charges were stayed
    • 22. 22 • Hindsight – Solutions that are now so obvious, the event should have been predictable – Leads to misinterpretation and invalid weighting of evidence – However, hindsight can be a useful tool in learning from an event • Outcome Bias – Judging a decision based on its outcome, rather than the quality of the decision in the circumstances it was made. Pitfalls and Traps
    • 23. 23 – Dismissing or ignoring inconvenient information and assumptions – Not considering reliability of evidence or mitigating factors – Selective referencing of evidence collected – Forming opinions or conclusions outside of expertise – Sharing draft reports prematurely Pitfalls and Traps
    • 24. 24Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Moscow London David K. Law Partner • Ottawa david.law@gowlings.com

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