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

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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
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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
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4. Common law duty to investigate
• When considering termination for cause or
misconduct
• Failure to investigate can expose employer to
additional damages
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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
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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
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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
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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.

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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.
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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
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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
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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
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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
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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
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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?
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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
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• 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

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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

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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

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• 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

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– 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

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David K. Law
Partner • Ottawa
david.law@gowlings.com