For answers that matter,
In Ontario and under Federal law, employers have an obligation to conduct a workplace investigation when they become aware of or suspect workplace violence, harassment, and/or discrimination.
This is an independent obligation, separate and apart from liability for harassment/discrimination. In other words, an employer can be found to have breached its legal obligations if it does not conduct a workplace investigation, even if the allegations are not substantiated. That said, the employer is not required to hire an external, third-party investigator to conduct the investigation. Nor is it necessary to conduct a full investigation in all cases. We are happy to provide guidance in this regard.
It is important to be mindful that harassment is an expansive concept that goes beyond sexual harassment to include any actions or conduct that can reasonably be expected to cause offence, humiliation, or some other physical or psychological injury or illness.
No, you do not have to hire an external investigator. However, there are several reasons to hire one. Here are just a few:
- Impartiality is a cornerstone of a well conducted investigation. An external investigator offers the benefit of being impartial and unbiased.
- The respondent is a senior official within the organization, meaning it will be difficult for an internal investigator to conduct an investigation free of bias or a reasonable apprehension of bias.
- You may require external assistance and support because you lack sufficient in-house expertise to conduct an appropriate investigation.
- Under the Ontario Occupational Health and Safety Act, where the Ministry of Labour (MOL) orders an external workplace investigation, the MOL requires that it be conducted by “an impartial person possessing such knowledge, experience or qualifications as are specified by the inspector.”
At the very least, the investigator you select should be knowledgeable in the subject matter, competent, and well trained with respect to conducting workplace investigations and examining and assessing the particular issues and allegations involved, such as sexual harassment, discrimination, reprisal, etc.
As for other considerations:
- The investigator must be truly independent and impartial, and far removed from the parties or employer entity.
- Ideally, your investigator should be focused solely on the investigation versus acting as both investigator and advocate. When acting as both, complete impartiality is not possible.
- An investigator who participates in ongoing professional training and is actively involved with workplace investigation-related associations and groups will likely be better equipped to quickly address any procedural issues that arise.
Sometimes employers select workplace investigators based on their immediate or imminent availability. We understand the sense of urgency. However, choosing the investigator best suited for the job, even if it involves a short waiting period, will ultimately serve the best interests of all the parties involved. It is also unlikely to impact your overall timeline in any significant way.
No, you do not have to hire a lawyer. That said, a workplace investigator with experience as a lawyer can offer a unique lens through which to conduct the investigation. If you believe the matter may end up in litigation, hiring a lawyer will significantly improve the chances of the investigation being deemed suitable and appropriate, and legally compliant.
You should be aware that in Ontario only certain categories of individuals (including practicing lawyers) are legally entitled to conduct external workplace investigations.
An independent investigation is conducted without direct oversight or involvement from the employer or any stakeholders in the process. In other words, it is unbiased and impartial. The investigator makes findings without influence from an internal party or related entity.
Yes, we are regularly retained to investigate complaints that are received anonymously.
The fact that employers and institutions hire us is inevitable given that they are usually the ones obliged to conduct an investigation.
As members of the Law Society of Ontario, we have professional and ethical requirements to which we must adhere. We take these requirements seriously and are committed to ensuring neutrality in every investigation we undertake.
No. When we are retained to conduct an independent investigation, we must remain neutral. We will therefore not represent or provide legal advice pertaining to the investigation or any other unrelated matter to any party – be it to the complainant, respondent, other witnesses, or the employer/institution – while the investigation is ongoing.
Yes. Although it can be challenging, we always make findings. We do so either by uncovering evidence that corroborates one version over another, or by applying credibility criteria and other factors that enable us to determine which individual’s evidence is more credible and reliable.
Credibility refers to the strength of an individual’s evidence, including whether or not it should be accepted and, if so, to what extent. It is not based on gut reaction, nor is it based on an assessment of demeanor. We assess credibility by applying a number of objective criteria and assessment factors and evaluating those against other evidence that has been collected.
The typical investigation takes 4 to 10 weeks from start to completion. However, depending on circumstances, it may take less or more time to complete.