Sounding like a broken record

The importance of proper investigations cannot be overstated

Sounding like a broken record
Stuart Rudner

By Stuart Rudner

Sometimes I feel like a broken record (if you are old enough to know what that means), as I continue to tell clients and anyone else who will listen that

  • investigations have become a key aspect of HR and HR law
  • failing to investigate properly will expose organizations to substantial legal liability and bad PR.

Two and a half years ago, I wrote about The rising importance of investigations. Last summer, I wrote It’s all about the investigation in response to an allegation that a woman on the organizing committee of the Pan Am Games was sexually harassed by Pan Am Games chairman, and former Ontario premier David Peterson. Back in March, I wrote about Conducting an investigation. And, on an ongoing basis, I have delivered presentations in which I discuss the importance of proper investigations, including last January for the Barrie Chapter of the HRPA and, most recently, at an Ultimate Software HR workshop.

With the introduction of Bill 132 (see here and here), investigations have taken on even more importance. Despite all of the media attention, the advice from employment lawyers like myself, and the growing risks, it is apparent that some employers still don’t get it.

The latest case to demonstrate how not to conduct an investigation is Balraj Shoan and Attorney General of Canada, in which an executive director at the Canadian Radio-Television and Telecommunication Commission (CRTC) filed a complaint of harassment against the commissioner, Raj Shoan. More specifically, the allegations were that Shoan sent several email messages which had the effect of undermining and humiliating the complainant. As she stated in the complaint:

“Attached is a series of email exchanges in which he makes repeated insinuations and unfounded accusations about me. You will see in the exchanges that I have in the past indicated that I find their contents inappropriate and unfortunate. Commissioner Shoan copies other commissioners and my staff on his inappropriate email correspondence, which I feel is an attempt on his part to undermine my credibility with my CRTC superiors and staff and to humiliate me in front of colleagues.”

An investigation took place and the investigator found that the allegation of harassment against Shoan was justified. Due to the nature of Shoan’s employment, which was by appointment, this led to some interim measures and, ultimately, Shoan’s appointment was revoked.

In response, Shoan applied for judicial review in Federal Court. He alleged that he was denied procedural fairness and natural justice because:

  • assurances made to him that he would have input into the identity of the investigator were unfulfilled
  • the investigator “was biased, and was adversarial with [commissioner Shoan]” during the investigation
  • “The chairperson was biased, as he participated both as witness in the investigation and as the ultimate arbiter of the complaint” and “his evidence was excessively critical and hostile toward” commissioner Shoan
  • The investigator refused Shoan’s request that she review the “complainant’s own conduct with respect to the impugned email exchanges” as part of the investigation
  • the Investigation was broadened by the investigator beyond the scope of the complaint.

To begin with, Justice Zinn confirmed that the standards of procedural fairness would apply where, as in this case, there were allegations of harassment which, of course, can have significant consequences. Zinn then focused on whether the investigators had proceeded with an open mind, or with a predetermined conclusion. As the court said:

“Commissioner Shoan has argued that the Investigator exhibited bias, but that is not the test to be used when examining whether an investigation was procedurally fair and proper. Actual bias need not be shown. The test this court has applied to investigative bodies, such as the Investigator here, is that they must not have a closed mind. Justice Richard in Bell Canada v Communications, Energy and Paperworks Union, [1997] FCJ No 207, 1997 CarswellNat 347 at para 31 (FCTD), articulated the test as follows: The standard of conduct which is applicable to those performing an adjudicative function is different from those performing a purely administrative or investigative function. In the case of an administrative or investigate function, the standard is not whether there is a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator maintained an open mind, that is whether the investigator has not predetermined the issue.” [emphasis added]

Zinn found that the latter was true — they had proceeded with their minds made up, and that as a result, the investigation was flawed and should be overturned. In fact, Zinn referred to the investigation as a “witch hunt”. Among other things, Zinn found that the investigator

  • “appeared to be influenced by the reputation of the chairman”
  • appeared to follow the direction given by the chairman in his evidence as a witness
  • asked “heavily leading questions”
  • expanded the investigation well beyond the original scope, and requested and reviewed additional documentation beyond the time set out in their mandate
  • failed to critically and impartially analyze the impugned emails
  • seemed to accept the complainant’s evidence regarding the tone of the emails entirely, while discounting Shoan’s explanation
  • made a credibility finding despite stating that she would not do so
  • changed some of the wording in the conclusion of her report (while a witness described the impugned email as being “overly insulting” and “offensive”, in the conclusion, the investigator writes that the same witness found it “terribly insulting and atrocious”
  • commented that Shoan’s comments may have violated the Canadian Human Rights Act, which was also outside the scope of the investigation.

Zinn also took note of the fact that the investigator’s notes were destroyed, writing that

given the potential for future application for judicial review of the report’s conclusions, one would reasonably expect that an experienced and impartial investigator would retain his or her notes, correspondence and audio recordings until well after the time limit for such an application.”

Not surprisingly, the decision, based upon the investigation report, was set aside (thereby saving Shoan’s job). Shoan was also awarded $30,000 in costs.

When I do presentations on the importance of investigations, I always stress that based on the case law, the hallmarks of a proper investigation include that it:

  • Be unbiased
  • Be thorough
  • Be timely
  • Be well documented
  • Contain defensible conclusions
  • Include recommendations & action items

Employers must understand that there is a significant distinction between an investigation and a prosecution. Retaining an investigator to obtain the proof necessary to fire someone is an improper mandate, and a good investigator will explain that. Even in the context of harassment allegations, employers can strongly state that they do not tolerate harassment while still ensuring that anyone accused of harassment is treated fairly. Failure to investigate, and investigate fairly, before taking action will lead to substantial liability.

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