Cynthia Ingram, Senior Associate at Rudner MacDonald LLP, participated in an HRPA webinar on workplace investigations.

1. February 17, 2016
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Workplace Investigations Gone Wrong:
What Every HR Professional Needs to
Know
Human Resources Professionals
Association
February 17, 2016
Rudner MacDonald LLP
Cynthia Ingram
Senior Associate

2. February 17, 2016
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Disclaimer
The user is authorized to use this presentation for the user’s
own needs only, and is not authorized to make copies thereof for
sale or for use by others.
The information provided in this presentation is intended as
general legal information only, and is not legal advice or a
complete statement of the law on the particular topics. Every
situation is unique and involves specific legal issues.
If you would like legal advice with respect to the topics
discussed in this presentation, we would be pleased to assist
you.

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Agenda
1. Why investigate?
2. Changes on the horizon!
3. Why conduct a reasonable and effective workplace
investigation?
4. How to conduct an effective workplace
investigation
5. Choosing an investigator
6. Privilege
7. Questions

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POLLING QUESTION
What type of complaints require an employer to
conduct a workplace investigation?
□ Bullying
□ Harassment (other than sexual)
□ Sexual Harassment
□ Discrimination
□ Employee Theft
□ Employee/Workplace Violence

5. Effective Workplace
Investigation – Why?
DUTY TO INVESTIGATE

6. The “Duty” to Investigate
Laskowska v. Marineland of Canada Inc.,
2005 HRTO 30
The duty of an employer to provide a
workplace free from discrimination
incorporated a duty to investigate as a
“means” by which the employer ensures that
it is achieving the Code-mandated “ends” of
providing its employees with a
discrimination-free environment
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7. BUT…
Scaduto v. Insurance Search Bureau,
2014 HRTO 250
“The breach of the Code is not the failure to investigate per se...
Employers are well-advised to investigate human rights
complaints as the failure to do so can cause or exacerbate the
harm of discrimination in the workplace. Internal investigations
provide employers with the opportunity to remedy discrimination,
if found, and can prevent Applications being filed with the
Tribunal. They also limit employers’ exposure to greater
individual and systemic remedies. The failure to do so is at their
peril. But, if they fail to investigate discrimination that does not
exist, that failure is not, in and of itself, a violation of the Code.”
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8. The “Duty” to Investigate
Zambito v. LIUNA Local 183,
2015 HRTO 605
“The Tribunal’s jurisprudence recognizes that s. 5 of the Code imposes
a duty on employers to investigate a complaint of discrimination. The
rationale underlying the duty to investigate is to ensure that the rights
under the Code are meaningful.”
“The duty to investigate is a “means” by which the employer ensures
that it is achieving the Code-mandated “ends” of operating in a
discrimination-free environment and providing its employees with a safe
work environment.”
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9. Changes on the Horizon
 March 6, 2015 - It’s Never Okay: An Action Plan to Stop
Sexual Harassment and Violence
 Bill 132 – Sexual Violence and Harassment Action Plan
Act (Supporting Survivors and Challenging Sexual
Violence and Harassment), 2015
 Includes amendments to the OHSA expand the obligation
under s. 25(2)(h) of the OHSA to include and increase
protection from workplace sexual harassment as a safety
issue
 Creating educational tools and materials for employers
 Change the definition of workplace harassment to include
“workplace sexual harassment” throughout the OHSA
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10. Changes to the OHSA
 Workplace Sexual Harassment: (a) engaging in a course of
vexatious comment or conduct against a worker in a
workplace because or sex, sexual orientation, gender identity
or gender expression, where the course of comment or
conduct is known or ought reasonably to be known to be
unwelcome; or (b) making a sexual solicitation or advance
where the person making the solicitation or advance is in a
position to confer, grant or deny a benefit or advancement to
the worker and the person knows or ought reasonably to
know that the solicitation or advance is unwelcome.
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11. Changes to the OHSA
 New statutory duties to be imposed on employers:
 measures and procedures for workers to report incidents of workplace
harassment to a person other than the employer or supervisor, where
the employer or supervisor is the alleged harasser;
 set out how incidents or complaints of workplace harassment will be
investigated and dealt with;
 set out how information obtained during an investigation will be kept
confidential unless the disclosure is necessary for the purpose of the
investigation or taking corrective action, or is otherwise required by law;
 set out how a complainant and an alleged harasser will be informed of
the results of the investigation, in writing, and of any corrective action
that has been, or will be, taken; and
 require employers to review programs addressing harassment as
needed, but at least annually.
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12. Changes to Duty to
Investigate
 Statutory duty to investigate “incidents and complaints”
of workplace sexual harassment
 Not limited to formal complaints
 One proposed change would give and MOL/OHSA
inspector the power to order and employer to hire an
independent third party to conduct a workplace
investigation of harassment, and obtain an investigation
report at the employer’s expense
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13. Effective Workplace
Investigation – Why?
COSTS ASSOCIATED
WITH THE FAILURE TO
INVESTIGATE

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The Cost of a
Failure to Investigate
Islam v. Big Inc., 2013 HRTO 2009
“…a failure to investigate a complaint of
discrimination sincerely made must have
the effect of worsening the situation of an
individual who has complained in good
faith, as it conveys an indifference to that
individual’s situation and a denial of his or
her dignity.”

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Morgan v. Herman Miller Canada
Morgan v. Herman Miller Canada Inc.,
2013 HRTO 650
 Morgan filed an application before the HRTO claiming
discrimination based on race
 Alleged conduct included the assignment of menial tasks,
being disciplined in an unfair manner and the termination of
employment as a result of bringing a complaint to
management
 Adjudicator concluded the events and incidents complained
of were not motivated by racism
 Conclusion that there was no discrimination

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Morgan v. Herman Miller Canada
Outcome
 Morgan awarded damages of 14 months' lost wages,
plus $15,000 as damages for injury to dignity, feelings
and self-respect
 Adjudicator noted the company's duty to "address and
respond" to Morgan's complaints
 There was no finding of discrimination but the company
was liable for failing to conduct an investigation and
respond to Morgan’s "belief" that his rights were
infringed
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17. The Cost of a
Failure to Investigate
Sears v. Honda Manufacturing of
Canada., 2014 HRTO 45
“…it is well-established in the Tribunal’s
jurisprudence that the Code imposes a duty on
organizations to investigate a complaint of
discrimination, and that a failure to investigate
can attract liability, even if the Tribunal ultimately
dismisses the underlying allegations of
discrimination.”
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18. The Cost of a
Failure to Investigate
Boucher v. Wal-Mart Canada Corp.,
2014 ONCA 419
 At trial, Ms. Boucher was awarded $200,000 in
aggravated damages, and $1 million in punitive
damages, $100,000 for infliction of mental suffering
against the store manager, and $150,000 for punitive
damages against the store manager
 On appeal, the Court reduced the two punitive damage
awards, but upheld the aggravated damages and
damages for infliction of mental suffering
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Indirect Costs
Even with the best intentions to conduct a thorough
and proper investigation, errors can be made
Errors in workplace investigations can be costly to
the company, including in indirect costs such as
corporate brand and reputation, employee morale,
and employee turnover
Remember that employees not involved in the
investigation will still be watching, since it could be
them coming with questions, concerns or a
complaint in the future
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CONDUCTING AN
EFFECTIVE WORKPLACE
INVESTIGATION
Inspector Clouseau vs. Perry Mason
"When you turn your mind to the solution of a crime,
you ferret out the truth."
Hamilton Burger, The Case of the Caretakers Cat
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Pre-Investigation Preparation
Carefully plan your workplace investigation,
particularly if the allegations or complaints are of
a serious, sensitive or personal nature
Determine if the investigation will be conducted
internally or externally
Ensure that internal investigators assigned to the
investigation have received proper training and
are aware of the context, including the legal
context, of the complaint and allegations
involved
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Pre-Investigation Preparation
Determine which employees should be involved in
the investigation
When multiple matters require investigation, or
where there are cross-complaints, determine
whether they should be investigated together or
separately
Ensure the investigation process, and what you
expect, is communicated to the employees
involved in the investigation
Determine what you know, and what you need to
learn
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23. The Role of Policies

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POLLING QUESTION
Does your Workplace Harassment Policy
include a section addressing your
complaint and/or investigation process or
procedure?
□ Yes
□ No

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Policies
 Every company should have written policies in place that
speak to how employee complaints will be addressed
 Policies should include:
 How to report
 How complaints will be investigated
 What steps will be taken to protect confidentiality, including
identity
 What steps will be taken to protect the complainant, witnesses
and the accused from reprisal – NO REPRISAL!
 Guidelines for Managers setting out what to do when a complaint
is received
 The role of the union, including the right to representation
 The timeline for investigation
 How the parties will be kept informed
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26. Policies
Make sure the investigator reviews the corporate
policies before meeting with any witnesses
Copies of policies should be maintained on hand
for quick reference
Policies are to be followed
Failure to follow polices is a poor practice and
could expose the employer to further liability
The HRTO wants to see that processes are not
only in place, but they have been followed
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Disotell v. Kraft Canada
Disotell v. Kraft Canada Inc., 2010 ONSC 3793
 Allegations of sexually inappropriate and offensive
comments made by co-workers
 Disotell complained to supervisor many times
 Once on sick leave, Kraft conducted an investigation
 Internal investigation by HR
 Investigator did not interview the 4 employees accused
of harassment, or any of the other employees working
on the night shift
 Conflicting information, yet night shift employees not
interviewed

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Disotell v. Kraft Canada
Costly Mistakes
 Supervisor failed to inform management of
allegations or intervene
 Relevant witnesses not interviewed
 Contradictory evidence overlooked
 Unskilled investigator
 Workplace policies not followed

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Don't Delay
 If aware of situations of discrimination, harassment or
violence in the workplace, investigate immediately
 The employer may also be obligated to conduct an
immediate investigation – such as when a complaint of
harassment or discrimination is alleged to have
contravened the OHRC or the OHSA
 If not handled quickly, law suits could be in your future
 Witness memories fade over time, or witnesses may
change their mind or have time to concoct stories
 A court or tribunal may interpret the delay in conducting
the investigation as the company considering the
complaint as not serious
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30. Don't Delay
When a complaint is made, simply
accepting the allegations and offering
nothing more than a “sounding board” to
the complainant is not enough
Complaints must be taken seriously and
dealt with promptly in a manner consistent
with internal policies
Sears v. Honda Manufacturing of Canada
February 17, 2016
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Interviews
 Interview questions and answers guide you to where you
want to go
 Questions should focus on the relevant facts: the 5 Ws,
and how
 It is a personal decision and preference of the
investigator whether to have written questions
 Don’t just interview witnesses thought to have relevant
evidence or information
 Interview all witnesses, favourable or unfavourable, and
follow-up with witnesses as necessary
 The focus of the interview is fact-finding to determine the
truth, not an interrogation
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Employee Involvement
Both the complainant and the respondent should
be interviewed
An employee under investigation should have the
chance to respond to the allegations, as well as
information the investigator intends to rely on in
making a decision
Determine whether an employee should be
instructed not to approach or communicate with a
witness or co-worker
At a minimum, the parties should be advised not to
talk about the investigation
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Communication
Employees should know they are being asked to
participate in an investigation, and what the
purpose of the investigation is before any interview
You need not share your questions with the
employees in advance
Follow-up with the parties if new details come to
light in the course of the investigation
Communicate the results of the investigation with
the parties, and outline what steps will be taken to
resolve the issue
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Collecting and Recording
Evidence
 Gather and preserve all documents and evidence
available
 Be open to receiving and reviewing information that
seems outside the mandate of the investigation
 Meet with key witnesses
 Take steps to ensure evidence that may be lost,
modified or deleted, whether in the ordinary course of
business or not (i.e., emails, voicemail messages, video
surveillance) are preserved
 Failure to preserve relevant documentation and evidence
may be fatal to an investigation
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Confidentiality
Keep the process confidential
Do not give any guarantee of confidentiality to
those who participate in the investigation
Advise participants that the information obtained
in the course of the investigation will be held in
strict confidence, except as necessary to
investigate and respond to the complaint
Information obtained in the investigation will not
be used in any form of retaliation
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Third Party Investigations
Do not rely on police investigation instead of your
own if an employee is suspected of criminal
conduct, or is charged with a criminal offence (i.e.
theft, assault)
Conduct your own independent investigation,
reach your own decision, and act on that decision,
regardless of any police or crown investigation
The standard of proof for criminal proceedings is
higher than the standard for employers in proving
grounds for employee discipline or termination
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Do Not Predetermine
the Issue
An investigator must keep an open mind
The investigator should be someone who is
objective and independent
Independence will ensure the absence of both
conscious and unconscious bias
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Do Not Fear the Results
In some cases, particularly in the case of serious
complaints which are upheld, there may be
discipline, terminations, or an employee may
choose to leave the company
You cannot fear the possible results, since it
could impact your investigation
An investigation is a fact-finding exercise, not an
exercise in damage control
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Keep Records
Notes, documents and reports that are part of
the investigation should be retained and
preserved
Investigation record retention should form part of
your workplace investigation practices and
policies
Notes and records of the investigation should
include all communications, and in particular
communications to the parties and witnesses
See Bank of Montreal v. Payne, 2012 FC 431
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Act on the Report
If you receive a report which confirm that
discrimination or harassment occurred or exists
in the workplace, act immediately
Address any inappropriate behaviour or
misconduct in an appropriate manner and in
accordance with your policies
Ensure there is training/re-training on workplace
policies
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WHEN TO INVOLVE
AN EXTERNAL
INVESTIGATOR
"If you have a problem, if no one else can
help, and if you can find them, maybe you
can hire the A-Team."

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POLLING QUESTION
Are your workplace investigations
conducted by internal or external
investigators?
□ Internal
□ External
□ Both – Dependent on the investigation

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Considerations in Choosing
an Investigator
 Impartial investigations begin with the choice of investigator
 Those responsible for selecting and retaining an investigator
should consider the following
 Experience and skill set
 Knowledge of the industry
 Knowledge of the workplace
 Knowledge of the subject matter in issue
 An understanding of the legal process
 Check references
 Understand your time and budget limitations
 Ensure clear communication with the investigator

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Elgert v. Home Hardware
Elgert v. Home Hardware Stores Limited,
2011 ABCA 112
 Sexual harassment allegations made against Elgert, an
employee with almost 17 years service
 A father of one of the complainants initiated complaint and
investigation process and the file was managed by two of
that employee's friends
 Internal investigator had no training in conducting sexual
harassment investigations
 When asked what he had done, the investigator told Elgert
"You know what you did“
 At trial, awarded 24 months’ pay in lieu of notice, aggravated
damages of $200,000 and punitive damages of $300,000

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Cromwell v. Leon’s
Cromwell v. Leon’s Furniture Limited,
2014 CanLII 16399 (NSHRC)
 Complaint of racial discrimination in various forms,
including unnecessary discipline alleged workplace
infractions, being passed over for management
positions, and consistently teasing and name calling
 The internal investigator was in a romantic relationship
with the complainant, but told no one
 Investigator concluded no support for the complaint
 NSHRC found the investigator was in a clear conflict
which undermined the reasonableness of the
investigation

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External Investigator
When to consider an External Investigator:
 Complaint is of a serious nature
 Complaint is against the company's senior
executives, human resources or the person
who would conduct the investigation
 Lack of time and resources to conduct an
appropriate investigation
 High risk for legal liability and/or changes
against the company

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POLLING QUESTION
Who are your external investigators?
□ Company Lawyer
□ Lawyer, other than the Company’s lawyer
□ HR Consultant

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Azeff and Bobrow v. CIBC
Azeff and Bobrow v. CIBC, 2013 QCCRT 299
Facts:
 Investigation conducted based on allegations of insider
trading
 Investigation conducted by an external investigator who
was a member of the firm that CIBC was a major client
 Lack of advanced notice to participate in investigation
 Investigator made assumptions on credibility that were
not founded on facts
 Employees not provided with reasons for termination
until 1.5 years after the investigation and termination

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Azeff and Bobrow v. CIBC
Costly Mistakes
Lack of notice of allegations
Failure to provide crucial evidence in advance
Perception of bias for the investigator
Failure to communicate the outcome of the
investigation in a timely manner

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Privilege
Sometimes a company wants to maintain privilege
over an investigation process and report
Example: If there is a risk of serious and/or
criminal liability for the company depending on the
outcome
Retaining a lawyer to conduct the investigation
can include providing legal advice, assessing
liability and giving recommendations to the
company
Alternatively, the investigator can be retained by
your counsel

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North Bay General Hospital v.
Ontario Nurses' Association
North Bay General Hospital received a complaint
that one of its nurses had been the subject of
bullying and harassing behaviour
The Hospital retained an investigator, a lawyer,
to make a determination of what occurred
At the conclusion of the investigation, the
Hospital communicated to the respondent that
she had violated Hospital policies
The nurse was warned and demoted, and
grieved the decision

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North Bay General Hospital v.
Ontario Nurses' Association
The union brought a pre-hearing motion for
production of the investigator’s report and
communications with Hospital representatives
The Hospital objected, relying on privilege
The arbitrator ordered the production of the
report and the communications surrounding the
report
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Privilege
"Some individuals who conduct these
investigations as independent third parties are
lawyers, some are not. I see no reason to
distinguish between these two groups if the
purpose for which they were retained is the same,
of investigating events to make findings of fact. I
see no reason to attach solicitor and client
privilege to a relationship which is not that of
solicitor-client just because one of the parties
happens to be a lawyer."
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Privilege
 So long as the investigation process, including the terms
of reference, make it clear that the purpose of the
investigation is to provide legal advice, the entire
investigation process and report may be privileged from
disclosure
 It is recommended to include in the retainer that the
investigator has been retained as an employment lawyer
to conduct the investigation, and that the report will be
used as the basis for providing legal advice
 Representatives of the employer should not interfere
with the investigation process or the final determination
reached by the investigator
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55. Final Thoughts
Morgan v. University of Waterloo, 2013 HRTO 1644
Laskowska v. Marineland of Canada Inc.
Elements of a “reasonable” investigation:
 The response must be prompt
 Relevant policies exist
 There must be corporate awareness that the conduct complained of
is prohibited
 The matter must be addressed seriously
 There must be a complaint mechanism in place – and training
 The employer must act so as to provide a healthy work environment
 The employer must communicate its actions, including the outcome
of the investigation, to the complainant
February 17, 2016
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Questions

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Workplace Investigations Gone Wrong:
What Every HR Professional Needs to
Know
Cynthia C. Ingram
Rudner MacDonald LLP
Senior Associate
cingram@rudnermacdonald.com
(416) 640-6402
@CindyIngramLLP
LinkedIn: Connect with me, and visit the Rudner MacDonald Page
Blog: Rudner MacDonald Blog
YouTube: Rudner MacDonald channel
Human Resources Professionals Association
February 17, 2016