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Investigations: On ambushing, lie detection and a feather

Posted By Laura Douglas, Justitia, Wednesday, September 13, 2017
Untitled Document
 Laura Douglas

In 2016 I was lucky enough to participate in a week-long training course for workplace investigators run by the Association of Workplace Investigators (AWI) in Ontario, Canada. AWI is an American-based association. This was the first training course they’d run in conjunction with their Canadian branch, the Canadian Association of Workplace Investigators (CAWI). I was interested to see how workplace investigations in either jurisdiction differ from our own. These are the three things that consistently come to mind when people ask me about the experience.


The first surprising thing to discover was that many US-based investigators are quite comfortable with an element of surprise in their interviews with respondents. Providing respondents with the allegations against them in writing, prior to the interview, was not common practice. The respondent may have no idea why they are in the meeting with the investigator at all. Instead, the investigator will ask a series of questions aimed at slowly getting to the heart of an allegation and eliciting a ‘spontaneous’ response.

This struck me as particularly different to the approach in Australia, which is always to give respondents the allegations in writing ahead of the interview so that they can consider their response. This practice stems from the strong emphasis in our workplace laws on ensuring a fair process for employees in circumstances where their ongoing employment may be compromised. I must say I prefer the Australian approach. Not being up-front with an interviewee in an investigation makes me uncomfortable. ‘Gotcha’ moments and ambushes undermine what should be a transparent, up front process to gather information.

Think you can spy a lie? Maybe, but not likely

Most investigators and, I suspect, the vast majority of lawyers, will be confident in their ability to determine whether a witness is telling the truth or not. Quite often, this assessment is based on a witness’ demeanour. When an investigator relies on demeanour as a measure of witness credibility, he or she presumes an ability to tell whether a witness is lying based on body language, facial expression and other behavioural cues. Many will adopt a ‘common sense’ rationale that if a witness avoids eye contact, shifts in their seat or fidgets, they must be lying. Conversely, if a witness appears ‘genuinely upset’ or is confident and forthright with their evidence, the witness must be telling the truth.

Unfortunately, research has shown time and time again that we do not have any particular talent for detecting lies in this way. Our ability to detect whether someone is telling a lie based on demeanour cues is about as accurate as a flip of the coin. In what has been described as the ‘Othello effect’, witnesses who are truthful can appear lacking in confidence out of fear of being disbelieved. Indeed, studies have proven that when a witness is telling the truth they are in fact more likely to exhibit so-called ‘deception cues’, such as fidgeting and shifting position.

Demeanour evidence, and indeed all the factors that investigators use to assess credibility, received a good deal of attention during the AWI course. I admit that until then I had not carefully scrutinised credibility factors in this way and thought carefully about the weight that should be accorded to each one. I recommend the exercise to any investigator.

Is a ‘feather of evidence’ all you need?

Workplace investigations are about making findings in civil matters, not criminal ones. The appropriate standard of proof is therefore the balance of probabilities. In other words, all that is required is a greater than fifty per cent probability that the proposition is true.

It is common for investigators to be confronted with what seems like the need to make a ‘line-ball’ call. How do you make a decision when it’s a ‘he said, she said’ scenario? At the AWI course, it was interesting to hear one leading US expert suggest that all you need is ‘a feather of evidence’ that sways you one way or the other. In other words, that one per cent is all it takes.

Some lawyers and investigators might hesitate at that statement and ask, ‘Well, what about Briginshaw?’ Importantly, and contrary to the manner in which the decision in Briginshaw is sometimes cited in investigation reports, the decision in that case is not authority for the proposition that a third ‘standard of proof’ applies in civil cases involving serious allegations. Instead, as Mason CJ, Brennan, Deane and Gaudron JJ made clear in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, Briginshaw reminds us that ‘the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove’ [authors’ emphasis].

I prefer this comment by Justice McHugh in an exchange with the New South Wales Solicitor-General in Witham v Holloway:

…there are only two standards of proof: balance of probabilities and proof beyond reasonable doubt. I know Briginshaw is cited like it was some ritual incantation. It has never impressed me too much. I mean, it really means no more than, ‘Oh, we had better look at this a bit more closely than we might otherwise’, but it is still a balance of probabilities in the end.1

Describing the tipping point for an investigator’s assessment of evidence as weighing only as much as a ‘feather’ still sits uncomfortably with me, but ultimately I have to agree with the US expert. The standard of proof is, after all, the balance of probabilities…but I’d want to make sure that feather was a worthy one.


1 Transcript of Proceedings, Witham v Holloway (High Court of Australia, McHugh J, 10 February 1995).

Tags:  ambush  lie detection 

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On the Credibility of Witnesses

Posted By Andrew Tremayne, Ottawa, Ontario , Thursday, September 7, 2017
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August 15, 2017

Andrew Tremayne

The recent acquittal by the Ontario Superior Court of three male police officers who had been charged with sexually assaulting a female colleague has, yet again, shone a bright light on the ongoing challenges posed by some of the bedrock principles of criminal law: the presumption of innocence and the heavy evidentiary burden of proving guilt beyond a reasonable doubt.

While many will find the outcome of this case to be wholly unsatisfactory, and will see it as yet another example of the criminal justice system’s failure to given an appropriate level of credence to the allegations of victims, to her credit, Judge Anne Molloy devoted a significant part of her written ruling to explaining these basic principles. As is not uncommon with cases of this nature, the outcome was, to a great extent, a matter of credibility.

Workplace investigators also have the sometimes difficult task of determining what evidence is reliable and credible. Workplace investigations are not criminal matters, so the standard of proof is the civil standard: proof on a balance of probabilities. In an investigation where people’s credibility is a factor, my clients often ask me how I decide who to believe — Doesn’t it all comes down to how the parties and witnesses behave during the interviews, they sometimes ask?

Although I usually consider the demeanor of the parties and the witnesses when they give their evidence as well as the firmness of their professed recollections, I have to be mindful that in many cases (even if a significant amount of time has not passed since the alleged incidents) memories can be faulty, narrators are sometimes unreliable, and specifics are evanescent. I also consider the fact that none of the witnesses in a workplace investigation testifies under oath or is cross-examined. As a result, I have usually given very little weight to these somewhat more traditional considerations.

Instead, I place much greater emphasis on the clarity, consistency, and overall plausibility of every witness’ evidence when compared to the evidence of other witnesses. This does not mean that the most organized or eloquent witness is always the most persuasive. Witnesses are usually nervous, and many ramble or go off on tangents. And as many seasoned investigators know, these digressions can sometimes yield important pieces of information. In my view, clarity, consistency, and overall plausibility speaks more to what has the “ring of truth” to it: what is more probable, or more likely, to have happened. Most of us know when something sounds farfetched or simply does not make sense.
In contrast, as far as Judge Molloy was concerned, the appropriate verdict was “not guilty” – and not because she was sure that the accused had behaved like perfect gentlemen. Even if she had believed that they were probably guilty or likely guilty, that would not have been enough. In a criminal case, the benefit of the doubt goes to the accused, and if she was not satisfied of their guilt beyond a reasonable doubt, she had no choice but to acquit them. In a workplace investigation, where the standard of proof is on a balance of probabilities, the evidence does not have to be as strong. An investigator does not need to be certain about exactly what happened, only what probably happened or is more likely to have happened.  

When the outcome of an investigation comes down to a question of credibility, I also carefully consider the ability of all witnesses to resist the influence of self-interest and self-justification when providing evidence and framing their answers. I take into account the consistency of witness’ evidence with the documentary evidence, when available, as well as whether the assertions of witnesses are consistent with, or corroborated by, other objective evidence. Finally, I consider what seems to be most likely in all the circumstances established by the reliable evidence. This is sometimes described as determining what version of events is more inherently plausible. In a criminal case, even in the face of a clear verdict, sometimes the most that can be expected is that much has been shown to be unclear or uncertain.

Tags:  credibility  criminal law  witness 

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Defining a “Poisoned Work Environment” in an OHSA Investigation

Posted By Ashley Lattal, Lattal Law Conflict Resolution Services, Wednesday, July 26, 2017
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Ashley LattalThe terms “poisoned work environment” (“PWE”), “hostile work environment” and “toxic work environment” are now often used by employees to describe work environments that they find to be uncomfortable and negative whether or not the conduct they are experiencing is based on prohibited grounds.  In other words, these terms are being used to describe incidents of personal harassment arising under the OHSA, as well as prohibited grounds harassment. Yet, there is, based on my research, still no clear legal definition for these terms in the OHSA context. 

For prohibited grounds cases, the concept of a PWE is well established.  One case stated the importance of the concept as follows: “there may be known instances of harassment by anonymous employees, or of known harassing conduct not caught by [s. 5(2) of the Ontario Human Rights Code] because no one perpetrator indulged in a ‘course’ of such conduct, or the member of the minority group discriminated against by having to work in that environment may not have been the person harassed”.  McKinnon v. Ontario (Ministry of Correctional Services), [1998] O.H.R.B.I.D. No. 10, citing Ghosh v. Domglas Inc. et al. (1992), 17 C.H.R.R. D/216. 

The concept of a PWE in non-grounds cases is mentioned in some case law but it is not clearly defined.  The Ontario Public Service Grievance Board considered the definition of a PWE in a non-prohibited grounds case as follows:

The duty to provide a work place where an employee can work was described as equivalent to the duty to provide a work place that is free of harassment, not intolerable or poisoned.Defining a poisoned work environment in the circumstances is not a straightforward matter. The only definition of poisoned work environment in evidence is the one in the [applicable Policy].  [That definition is one based upon prohibited grounds.]

Although a non-grounds based definition of a poisoned work was not specifically articulated, I note that the applicable…policy provided as follows, in a footnote at page 12:

Management must not condone any kind of discrimination and harassment and must also take appropriate and timely action even if the discrimination or harassment falls outside of the application and scope of this policy. Processes used to address complaints under the WDHP policy may also be used to resolve disputes falling outside of the scope of this policy, for example, personal harassment.

Implicit in the argument was the idea that the definition of poisoned work environment was applicable by analogy to any unhealthy situation in the work place. And non-grounds based harassment has been the subject of successful grievances. See for instance, Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225 (Shime). The employer's response to this argument was not a rejection of the notion that there is an obligation to prevent or remediate a poisoned work environment. Rather, the employer's argument centred more on the idea that the grievor was largely responsible for the situation in which he found himself. Nonetheless, the fact that there is no established definition of a non-grounds based poisoned work environment in evidence, makes it difficult to state with any certainty the extent of the lack of health in the workplace which would warrant the designation. Certainly, the facts here are not at the level of the sustained course of abusive personal harassment endured by the grievor in the TTC case cited just above.Cardoza v. Ontario (Ministry of Community  Safety and Correctional Services), [2011] O.P.S.G.B.A. No. 14.  [emphasis added]

Another case cautioned against “loose” use of the term PWE.  Note that PWE was clearly defined by the Policy in this case (i.e., “a negative, hostile or unpleasant workplace due to comments or conduct that tend to be demeaning [that may] result from a serious and single event, remark or action”). 

The Grievor and the Union were quite loose throughout these adjudicative proceedings with the words, “toxic” or “poisonous work environment” in debasing both Ms. Hamilton and Mr. Monid.  These are damning words connoting very serious acts of alleged misconduct by these two managerial employees. Thus when they are bandied about in such a reckless or disingenuous manner by what the Board has concluded is a disgruntled Grievor who was dissatisfied with her performance appraisals the Union has the obligation to discharge an onus to prove those charges on cogent evidence.  When the Union fails to do so as it has utterly failed in the instant case, it is appropriate for the Board to make it clear that there is no basis to the claims of “bullying, harassment and discrimination” by these two presumed respected members of management, lest there be any residual damage to their professional reputations as a consequence of the mere leveling of such spurious allegations against them by the Grievor.  Ontario Public Service Employees Union v. Ontario, 2017 CanLII 16719 (ON GSB) [emphasis added]

In addition to a lack of a clear definition in the case law in the context of a non-prohibited grounds case, the term is often not clearly defined by employer policy.  In fact, employers often have no such definition in their applicable policies or they have a definition that is applicable only in cases of prohibited ground-based harassment. 

The investigator must decide how to proceed where no definition is provided in the applicable policy. I do not purport to have a definitive answer to this question.  However, it is a question each investigator ought to give due consideration to before making findings that could be difficult to defend without a clear approach. 

Below are several tips that may assist in determining that approach. 

  1. Consider the use of the term PWE. It is often the case that this term is used loosely to describe what is, in fact, personal harassment and the facts simply do not fall within the concept of a PWE.  Explore with the complainant what he/she means by that term and ensure your mandate encompasses what the actual complaint entails.

It may be the case that the term PWE is not used by the parties but the allegations nonetheless invoke the concept of a PWE.  Consider, in consultation with your client, whether the scope of the investigation ought to be expanded to investigate those allegations and, if so, what definition will be used for PWE.    

  1. Check the Policy.  Is “PWE” defined in the context of both prohibited grounds and personal harassment?  If it is, the investigator is in luck and can simply apply the policy definition to the facts of the case.

If it is not, consideration should be given to how the investigator will determine what is and is not a PWE.

  1. Apply existing PWE definition.  Some investigators will simply apply the grounds-based definition to personal harassment cases.  Other investigators do not define “poisoned work environment” in their reports where there is no applicable definition and, instead, simply determine whether or not, in their professional view, the facts support a finding of a PWE. 

The risk in both approaches seems obvious—it may lead to doubt as to the legitimacy of the findings around whether a PWE does or does not exist.  As stated in the OPSEU v. Ontario case referred to above, the lack of a clear definition “makes it difficult to state with any certainty the extent of the lack of health in the workplace which would warrant the designation” of a PWE.  To moderate that risk, it may be helpful to acknowledge in the report the lack of clarity around the definition in the context of personal harassment and explain the rationale for the selected definition.

  1. Consider other Findings.  If there is no policy definition, an investigator may steer clear of applying a definition that may not, in fact, be applicable (such as a prohibited grounds definition) until the case law on this point becomes clearer. Consider whether it might be best to comment upon the existence of a “negative” or “dysfunctional” work environment rather than determining whether a term of art like a PWE applies in the circumstances. 
  1. Consult Employment Counsel.  If there is no definition in the policy, consider having the client seek advice from employment counsel to determine an appropriate definition that does not set an unintended precedent for that employer.
  1. Consider amendment of Policy.   It certainly makes our jobs as investigators simpler when PWE is clearly defined, given the frequent use of this term by complainants.  If the client is seeking recommendations, it might make sense to advise them to update their policies to include a PWE definition for all types of harassment to provide clarity. This ought to be based upon advice from the employer’s legal counsel to ensure that the selected definition makes sense for the organization. 

By Ashley Lattal, Lattal Law Conflict Resolution Services
Ashley is a lawyer, workplace investigator and mediator.  She is the owner of Lattal Law and can be contacted at


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Mental Health Conditions in Workplace Investigations

Posted By By Ashley Moore, M.A., Conflict Management Consultant, Tuesday, July 18, 2017
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Ashley MooreOriginally published on July 4, 2017

Governments and employers have been working hard over recent years to deal with mental health and its stigma in society[i], including in Canada.

Encouragingly, employees’ understanding and awareness of mental health conditions in the workplace has grown significantly over the last ten years[ii]. This change in perception is important, given that one in five of Canada’s working age population will experience a mental health illness within their lifetimes[iii], with more than 6.7 million Canadians currently living with a mental health problem or illness[iv]. While February’s Ipsos poll revealed a decline in the number of Canadians who describe their workplace as being “psychologically unhealthy and unsafe”, the development of evidence-based strategies to mitigate the impact of mental health conditions on workplaces is still in its infancy. 

Given the above, investigators need to be mindful of the potential for mental health conditions to present as a relevant factor in any workplace investigation. Some specific examples include the following:     

  1.  Diagnosed Mental Health Disorder

People with diagnosed Mental Health Disorders could misinterpret reality and facts.  For example, a respondent could report events that did not occur, such as receiving secret or subtle flirtations from a complainant.  A witness could impose meaning on an action that is not justified, such as believing marketing photographs were taken for reasons other than a company brochure.  A complainant could purport malicious intent to an action that was simply careless.

A diagnosis can complicate several aspects of an investigation, particularly when uncovering facts, determining responsibility, and recommending next steps, leaving some investigators unsure about how to hold people accountable within an accommodation strategyGathering tangible evidence and conducting thorough fact-checking will corroborate statements and uncover misinterpretations to avoid relying on skewed or questionable data.

  1. Non-Diagnosed Mental Health Disorder

Occasionally a party’s behaviour may give rise to concerns of an undiagnosed or undisclosed mental health condition.  This can be especially concerning when behaviour is framed as erratic, malicious, non-voluntary, or potentially violent.   Investigators need to recognize when people are using this language and drill down to get clarity on the specifics of incidents.  A disadvantage of the increased social awareness is the increasing use of mental health language and characteristics to impute negative intent, to excuse adverse impact, or to attempt escalating organizational responsiveness. 

There are however, occasions where people use generalized language such as ‘crazy’ to express fear for their physical safety, when they do not have other ways to talk or cannot explain why they are fearful.  To address these concerns, investigators should have at least a basic understanding of the signs and symptoms of potential violence and self-harm.  Expertise can then be sought to conduct a proper violence risk assessment particularly when the investigator does not have the necessary experience. 

  1. Accommodations

Occasionally, an investigator will be faced with an accommodation plan built from vague, ambiguous, or even outlandish doctor’s recommendations.  While a doctor should protect personal medical details, some employers do not understand that they can request certain information to build a holistic accommodation plan. 

Investigators can often assist by identifying to the employer unhelpful or impractical accommodation plans to better support a healthy productive workplace. 

  1. Investigation Process and Practices

Investigations themselves are not without stress and discomfort for parties and/or witnesses.  Drawn out processes, invasive evidence gathering, and repeated interviewing can create a sufficiently stressful environment to exacerbate symptoms, or contribute to onset for those predisposed to certain conditions. 

Techniques and processes that invite parties to relive problematic events can traumatize parties and witnesses alike, potentially as much as the original incident.  An appropriate (ie. non-accusatory) interviewing style is of paramount importance for witness health and wellness.

In addition to creating personal and familial distress, impacting an individual’s income, productivity, and career, the prevalence of mental illness can impact the productivity and relationships within teams.  While the considerations above are brought to the foreground with mental health concerns, investigators should be mindful of such factors in every instance. 

Mental health support structures offer additional care and accountability frameworks throughout and following an investigation.  Investigators serve an important role in identifying for employers the mechanisms that contribute to a safe, healthy, and inclusive society.

[i] Examples include the introduction of the National Standard of Canada for Psychological Health and Safety in the Workplace, the Federal government’s commitment to invest $5 billion over 10 years to support mental health initiatives, and the indigenous youth focused Strengthening Wellness Education to Love Life (SWELL) program.

[ii] 2017 Ipsos poll indicates that the percentage of employees who indicate they know awareness some or a lot about mental health conditions such as depression have jumped from 66% to 79% since 2007. 

[iii] Canadian Mental Health Association – Fast Facts about Mental Illness

[iv] Mental Health Commission of Canada – Making the Case for Investing in Mental Health in Canada

Tags:  disorder  mental health  mental health conditions 

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Workplace Violence Investigations

Posted By By Kevin Calder, CPP, PSP, CTM, Principal, K. Calder & Associates, Tuesday, July 18, 2017
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Originally published on April 25, 2017

As workplace investigators, we are asked to investigate a wide range of behaviours, actions or concerns in the workplace. Depending on how the investigation will be used and reviewed, our practices must follow the expectations of investigative standard practice, corporate policy, regulatory requirements and legal or labour relations rules.

But what happens when an investigation is not so clear-cut and falls into similar but separate categories?

I work closely with my colleagues in the Human Resources departments in cases where, during an ongoing investigation related to bullying and/or harassment, a concern of workplace violence is also identified. The number of these types of “dual focus” investigations is increasing. 

Regularly, involved parties are describing comments or conduct that would be considered as workplace violence in both federal and provincial Occupational Health and Safety regulations. It is also important to recognize that individuals with long histories of bullying and harassing behaviour have perpetrated some of the worst incidents of workplace violence in Canada. Concerned complainants often point this out to me when they express concerns for their personal safety. What should the investigator do when a party says, “I need you to tell me that he is not going to come back with a gun and shoot me”? Whether driven by media reports or the increasing concern of workers, this is not an unexpected comment in my investigative practice.

Further compounding the challenge for investigators is the fact that what workers may consider as “violent” varies from person to person. In British Columbia, for example, the WorkSafeBC definition of violence (non-worker) and workplace conduct (worker-on-worker) includes the following excerpt:[1] “any threatening statement or behaviour which gives a worker reasonable cause to believe that he or she is at risk of injury”. I have had numerous WorkSafeBC officials advise me that if a worker feels threatened, then the employer must investigate. I would suggest that the threshold for investigation is quite low, and at minimum requires some form of action as outlined in OHS regulations.

In a situation where the incident appears to be isolated and the risk of future violence is low, the standard OHS investigation is, in most circumstances, sufficient. Representatives of the OHS committee normally conduct this type of investigation, and would not involve a workplace investigator.  

However, in situations where an employee notifies the employer of an ongoing concern, it is important to consider a more specialized approach. So how should a workplace investigator proceed?

I would advise that it is critical for the investigator to understand the unique aspects and requirements of what I have termed a “protective” investigation, as compared to a harassment investigation, or an OHS incident investigation.

For the purpose of this article, I will focus on the unique aspects of the harassment and protective investigations.  

In the majority of harassment investigations, the investigator is scrutinizing specific allegations and incidents to make a finding that something occurred or not, based on a preponderance of the evidence. In most circumstances, the risk of physical harm is low and the employer can manage the risk of increased emotional harm to the complainant and respondent through a variety of strategies.

Prior to considering the need for a protective investigation, the investigator needs to ensure that a confirmation bias (e.g. that the violence risk is likely low and that standard approach is adequate) does not influence their approach.

It is often difficult for individuals, including investigators, to even consider that the violence risk is a real concern. The investigator must objectively consider the need for a protective investigation. The scope of the analysis and time involved will vary from case to case. But I would submit that it’s better to err on the side of caution and gather preliminary information to support determining the need for a fuller investigation.

The primary goal of the protective investigation is to gather information in support of a “threat assessment” and the implementation of the subsequent “risk mitigation strategies”. A protective investigation is forward-looking, to determine if violence is present and may escalate. Threat assessment and management is not identified as a core skill by CAWI. I wear the dual hats of a workplace investigator and a “Certified Threat Manager”.

However, the workplace investigator plays a key role in early identification, information or evidence-gathering, and liaison between employers and threat assessment and management professionals. In cases where the investigation does not identify an ongoing or serious risk of violence, the investigator has provided the employer with needed risk mitigation support and guidance.

In protective investigations, I work with a different evidentiary standard than that of most harassment investigations. I am often presented with and gather less-tangible evidence. Often the concerns of the complainant may be based on veiled threats or innuendo, and the resulting effect on the individual, such as fear or anxiety, is a consideration. I deliberate whether comments of concern are early indicators of violent intent. I am also interested in collateral information such as personal or professional stressors, previous violent history, access to weapons, and violent related comments or “leakage” associated with the individual of concern.

As an investigator, I must consider if sharing information with the individual of concern increases the risk of subsequent violence and the risk of increasing the fear and anxiety of the complainant. Unlike within a harassment investigation, I am not obligated to present information or evidence to the respondent if I feel it increases the risk of workplace violence or other concerning behaviours. Now, I recognize that this limits the ability to use standard human resource or labour relation avenues to address behavior. Limiting the amount of information provided to subjects of concern (including the identity of parties and witnesses) is based on an investigative risk assessment and on the need to “do no harm” as the result of investigative actions.

My fundamental goal is to ensure that all parties are safe and mitigate the risk of future violence.

Often, following the completion of a protective investigation, there is limited or no indication that a risk of violence exists. In the event that the behaviour or comments of concern constitute a breach of bullying and harassment policy or legislation, a separate investigation could commence. If handled appropriately and sensitively, the subsequent investigation should not be negatively affected by the now-closed protective investigation.

Should new information come to light or there is a change in violence-related behaviour, the protective investigation can be re-opened and new information considered in the ongoing threat assessment.

The concerns related to workplace violence are increasing in workplaces across Canada. OHS regulators are increasing pressure on employers to have the ability to investigate, assess and manage the risk of violence from both internal and external sources. Where once workplace violence programs focused on late night convenience store and taxi robberies, now the fear of a disgruntled co-worker carrying out a workplace homicide is not inconceivable.

The workplace investigator can play a key role in the early identification of individuals of concern, while also giving peace of mind in low-risk situations.

[1] WorkSafeBC Regulation 4.27 Definition “violence”

Tags:  dual focus  protective investigations  risk  violence  workplace violence 

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The Internal Investigation: A Means to an End

Posted By By Emily Kaufer, B.C.L. /LL.B., Manager, Human Rights, Harassment & Privacy Compliance, Air Canada, Tuesday, July 18, 2017
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Originally published on March 26, 2017

Roughly a year ago I read an eBook entitled “The Art of the Internal Investigation”.  The term “art” refers to skill and knowledge acquired by experience or observation.  Being a “good investigator” is a proficiency, much like being a good negotiator. But as this publication recognizes, there is a unique skill applied to an internal workplace investigation. As an internal workplace investigator, a “custodian of precedent”, you may be asked to recommend the implementation of disciplinary action, if appropriate. You also may be relied upon for your knowledge of your organization’s culture, and supporting the parties after a complaint is filed and an investigation is completed. This mission is in its truest of forms an “art”.

The idea of an “internal investigations model” is not novel. I would like to think that we have successfully moved past the “why”, and are now able to better understand and articulate inherent benefits of a corporation’s internal investigations model. Canadian courts have reinforced that adequate investigations, at a minimum, are advisable and sometimes even required to address internal complaints. That "an employer owes a duty to treat its employees in a fair and proper manner… [and] this duty goes as far to promote the interest of its employees and to see that the work atmosphere is conducive to the well-being of its employees.”[1] However, if we take the Ghomeshi investigation as a case study, we see that the findings revealed several key pieces of information. For example, CBC’s internal complaint mechanism was inconsistently followed, and also, relied too heavily on the submission of “formal” complaints, even though numerous parties were aware of Ghomeshi’s problematic behavior.

This does not mean that the answer is that all workplace complaints must be handled by an external party. Contrarily, if the employer is equipped with an individual, or a group of individuals, that has the experience and necessary skill to conduct prompt, thorough and impartial workplace investigations, these matters can be dealt with internally, and the employer would only seek external support in rare circumstances.

The case from the Ontario Human Rights Tribunal, Zambito v. LIUNA Local [2], is a perfect example of a well-executed internal workplace investigation. The complainant (or applicant in this case) was of Italian/Sicilian descent, and alleged that his co-worker subjected him to harassing comments about his nationality and family. He also stated that his employer violated his human rights, by failing to take reasonable steps to respond to and address his complaint. The employer denied this, and stated it conducted a thorough investigation.

The internal complaint was investigated by the employer’s in-house counsel. In the Tribunal’s decision, the Adjudicator noted that the internal investigator, who practiced labour and employment law for twenty years, did not know the complainant/applicant. Moreover, the investigator was deemed to be “neutral”, “skilled” and “competent”. The investigator interviewed the complainant/applicant; interviewed the respondent; interviewed two eye witnesses to the incident, and two other witnesses who saw the complainant/applicant immediately after the incident. These interviews were all completed within two and a half weeks after the incident and a thorough written report was prepared four weeks after the incident. The Adjudicator therefore determined that the investigation process “was straightforward, logical, internally consistent, and detailed”[3], and as a result, the application was dismissed.

So what do we continue to learn about internal investigations? The challenges internal investigators face remain plentiful: Ethics. Can we truly be “impartial” if we have friends or socialize with employees outside of work? Being an embedded resource. Do people who know your job approach you with skepticism and pessimism? “Unconscious biases”. Do we tend to favor management over an individual contributor, or vice versa? Do we use our knowledge unethically and overlook a complaint when it is made by “THAT chronic complainer”? The truth is the answers to these questions are complex and not straightforward. Ultimately, a certain level of self-reflection for internal investigators is necessary but will likely also lead to more questions. The goal is to continually acknowledge and consider the range of variables present in most internal investigations.  It is precisely these ongoing considerations that make conducting internal investigations a true “art”.

[1] Robinson v. Royal Canadian Mint, [1992] O.J (Ont. Gen. Div.) aff’d [1997] O.J. No. 1966 (Ont. C.A.) (p.10).

[2] 183, 2015 HRTO, 605 (CanLII).

[3] Ibid. at para 32.

Tags:  art  internal  internal investigation  internal investigations model 

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Past Behaviour Should be an Indicator of Future Behavior

Posted By Grace Skowronski, Senior Lawyer, Lister-Beaupré , Monday, July 17, 2017

At least when it comes to an employer’s practice of handling employment status during a workplace investigation

Originally published on February 22, 2017

A recent labour case has confirmed that if an employer has a practice of placing employees on paid leave pending a workplace investigation and the employer’s consideration of how it should respond to the investigation, such a practice should be applied across the board.

In some cases, a practice to place employees on leave with pay during workplace investigations may be subject to conditions. In instances where an employer wishes to rely on an “exception” to such a practice, it must first establish that an exception does in fact exist. Specifically, the employer should establish the relevant factors or circumstances that must exist for it to divert from its practice (and instead implement the exception).

Once an exception is established, the employer must be able to point to the circumstances that led it to rely on the exception. It must also show that nothing else motivated its decision to divert from its practice.  It is important that employers remain consistent in their approach.

In City of Ottawa and Canadian Union of Public Employees, Local 503, the City of Ottawa decided to conduct a workplace investigation into an incident involving one of its employees. The employee was placed on leave with pay, pending the investigation as per the City’s practice.

Given the nature of the incident, the employer first asked the employee to attend a psychological assessment (in part) to determine if the employee had a relevant medical disorder that could have contributed to the incident. A psychologist ultimately determined that there was no disorder that contributed to the incident, however, based on some personality traits, it was recommended that the employee successfully complete an anger management program before returning to work. The employee then failed to attend two (2) follow-up meetings with the psychologist, although he did attend the investigation meeting.

As a result of his failure to attend the meetings with the psychologist, he was placed on leave without pay. The City alleged that its practice of placing employees on leave with pay during the course of a workplace investigation is “subject to the employee’s cooperation with the investigation”. In this case, because the employee failed to attend the meetings with the investigator, the City alleged that he was not cooperating with the investigation. This led the City to depart from its practice of providing paid leave.

Chair Russell Goodfellow disagreed that the employee was not co-operating with the investigation. In his decision, Chair Goodfellow stated that, “…the City was attempting to utilize the question of paid vs. unpaid leave to attempt to encourage or incentivize the attend a treatment program that had been recommended by Dr. Seatter prior to concluding its investigation or deliberations. When the grievor proved unwilling to do so…the City’s option was not to depart from its practice but to bring its investigation and deliberations to an end by making and communicating its disciplinary decision.”

Employers should be careful when deciding what to do with an employee who is the subject of a workplace investigation. Equal consideration should be given when the employer decides to change the employee’s status during the course of an investigation or during the employer’s deliberations.

Employees who feel that they are being treated unfairly during the course of a workplace investigation by their employer may have a valid complaint against their employer.

Tags:  paid leave  workplace investigation 

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Investigating Sexual Violence on Canadian Campuses

Posted By Alana Sharpe, BA, JD, Human Rights & Equity Advisor, Brock University, Monday, July 17, 2017
Alana Sharpe
Originally published on February 12, 2017

Policies and practices to respond to sexual violence on Canadian campuses received much-needed attention in 2016. Both legislative and cultural changes are being made to address this pervasive issue that has been systemically ignored in the past.

Following in the footsteps of American campuses, Canadians are actively engaging in conversations about how to fairly and consistently respond to allegations of sexual violence. Prodded by an active government, colleges and universities across Ontario set down to draft or revise a policy relating to sexual violence within their institution. The Ontario government of Premier Kathleen Wynne was the first to introduce legislation mandating that every campus have a sexual violence policy in place, and now other provinces are following suit. Even campuses that do not have a legislative requirement have recognized the need for a sexual violence policy to be adopted or revised.

On March 8, 2016, just in time for International Women’s Day, the Ontario government passed Bill 1321: An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. This highly anticipated and celebrated bill brought forward many changes to how campuses address allegations of sexual violence that occur within their institution. This article will focus on the changes Bill 132 made to the Ministry of Training, Colleges and Universities Act (the “MTCU Act2”).

The changes to the MTCU Act began by defining sexual violence as any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent. It is important to note that this umbrella term includes various forms of sexual misconduct such as sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.

The MTCU Act went on to require all colleges and universities to have a sexual violence policy in place, by January 1, 2017, that applies to students. Further, the Ontario Government passed Ontario Regulation 131/163: Sexual Violence at Colleges and Universities (the “Regulations”), which provided campuses with direction on the required contents of the sexual violence policy.

The changes to the MTCU Act and Regulations may create additional business for trained investigators, as campuses will likely be calling on external investigators to look into reports of sexual violence. The Regulations require campuses to set out the investigation and decision-making processes, who will be involved, and a description of the elements of procedural fairness that will be part of the investigation and decision-making processes.

Campuses will be held to a high standard of procedural fairness during the investigation process. It is well established that one important element of procedural fairness is the right to have an impartial decision maker. This allows external investigators to market their services to campuses as impartial decision makers, so the institution can ensure that it meets basic requirements of procedural fairness.

Some Ontario campuses have included an investigation process in their sexual violence policy that requires an external investigator. Further, there has been an emphasis on the investigator having specific knowledge and expertise in trauma-informed investigations. For example, Brock University’s recently adopted Sexual Assault and Harassment Policy4 requires that anyone conducting an investigation under the Policy be competent in conducting trauma-informed investigations. The Policy defines “trauma-informed” as a process that is informed by the understanding of how trauma affects survivors’ response to services, to resolution processes and to investigations. Trauma-informed processes should be carried out with the goal of avoiding survivor re-traumatization, increasing the safety of all, and increasing the effectiveness of interactions with survivors.

A great deal of research5 shows that individuals who have been traumatized due to sexual assault or harassment have a tendency to tell their story in unexpected ways. They may have difficulties recalling memories in a linear order, forget seemingly important details, or focus on specific sensations, such as smell. Trauma-informed investigators must build trust and rapport with survivors. They must ensure that they don’t allow common societal myths and stereotypes to enter into their credibility assessment, and they must postpone reaching conclusions until they have allowed the survivor to work through the neurobiological impacts the trauma may have had on them.

While the landscape for responding to sexual violence on campuses in Canada is changing and evolving, it is important that investigators stay up to date on trauma informed sexual violence investigations so they can provide campus clients with the best service available. 


Tags:  campus  Canada  investigation  sexual violence 

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Welcome to the CAWI Blog

Posted By Emily Kaufer, B.C.L./LL.B., Manager Human Rights, Harassment and Privacy Compliance, Air Canada, Monday, July 17, 2017
Emily Kaufer

Originally published on February 10, 2017

As a recently elected AWI Board member and the Chair of the CAWI Committee, I am very eager to develop and maintain benefits that are specific to our Canadian members and audience.  As part of that initiative, members of CAWI will be contributing a monthly blog to the website, to keep one another informed and up to date on Canadian specific content, as well as various AWI topics. 

These blog submissions will highlight interesting developments in Canadian workplace law and investigations, and will be written by various AWI/CAWI members representing the legal, educational and human resource domains. We are so excited to further engage with our fellow Canadians and continue in the pursuit of enhancing the quality of impartial workplace investigations.

Should you have any questions, or wish to submit a blog post, please contact me.


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Workplace Investigations a Union Perspective

Posted By By Cate Moss, National Human Rights Coordinator, Unifor Local 2002, Sunday, June 18, 2017
Updated: Tuesday, July 18, 2017
Untitled Document

Cate Moss Originally published on May 15, 2017

In typical fashion, workplace investigations citing harassment, discrimination and bullying are often conducted by internal investigators, such as a Human Resources Manager, or by an external third party.  Although there is no doubt the intention is to conduct a fair, thorough and impartial investigation, this process can be thorny when there is a labour union representing one or both parties and the potential of a grievance or arbitration looms overhead.

Indeed, the Union will represent all members involved in the complaint process and ensure they are afforded all their earned rights under the Collective Agreement and the law.  While the Union is usually in a representation or support role during this process, it is not a walk in the park.

When the investigation involves a member of the bargaining unit and a member of management, the Union has the sole purpose of representing the bargaining unit member.  Where it gets ‘sticky’ is when both parties are from the same bargaining unit.  Whether the Union agrees or disagrees with the investigation findings, one of their members will most likely request to challenge the results through an appeal process or grievance.  Regardless of what happens, one of the Union’s members will be unhappy with the Union, feeling unsupported and not represented.  It can cause division. It’s equally not an easy feat for the employer since the parties in conflict are their employees and the tension negatively impacts the workplace.  Workplace investigations can be intrusive and it can take a toll on the overall work environment.  If the investigation is challenged, it only lends to further stress, cost and possibly a more divided workforce. And so, everyone stands to lose.

There is no perfect solution to the impact complaints and investigations have on workers, employers and the work environment.  But avoiding a fight over the findings and focusing on solutions instead is perhaps a positive way forward.  Unions will always stand by their principles when having to make choices.  So why not have a representative of the Union be part of the investigation process and co-investigate?  Seem far-fetched?  Not really.  If the reason for being part of a Union is to protect workers from alleged abuses, then having a decision based on established facts and reasons they can stand by, the Union cannot be strayed in the wrong direction.  Although members expect the Company to not weigh in their favour, they don’t expect it from their Union.  But when two members are in conflict, the Union must choose.  It will be easier when the facts are agreed upon and the Union believes in the fact gathering process that was undertaken.

I have been asked numerous times why a labour union would want to participate in workplace investigations citing harassment, discrimination and bullying.  Some believe it to be a conflict of interest.  But one need only look at the history of the labour movement which is founded on the principles of fighting for worker rights which encompasses healthy and safe workplaces, including the psychological health of employees, and the protection from harassment and discrimination. So, it’s not a stretch to say participating in workplace harassment investigations is far from a conflict of interest.  It ensures fair representation of all individuals involved and speaks to our “raison d’être”.

Indeed, having a union representative on the investigation team can provide for transparency of the process, and in most cases, this can remove the notion that the investigation was not impartial, thorough or fair since the union had a say in the process and potentially the decision of whether the evidence substantiated the allegations.  While one party or the other is unlikely to agree with the outcome, the Union can stand by the process as fair and say that they represented the interests of both parties. Certainly, the Union always reserves the right to grieve excessive disciplinary measures resulting from the outcome, but participating in the investigation will alleviate in most cases the need to grieve the investigation outcome.  This will leave one thing, albeit major, to focus on; the resolve and moving forward (rather than the method by which the problem will be identified).

While the Union can help make the determination of whether the claim is substantiated or not by the evidence, it cannot be part of any recommendation that leads to disciplinary actions. Nevertheless, many positive outcomes can take place with the help of the Union following an investigation.  When the Union has “buy-in” of the findings, it can support workplace initiatives that cultivate a culture of respect and zero tolerance for workplace harassment.

Tags:  arbitration  claim  Collective Agreement  grievance  union  union representative 

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