Recent Ontario case addresses differences in function between investigator and lawyer
In Toronto Metropolitan Faculty Association v. Toronto Metropolitan University, 2024 CanLII 109523, arbitrator Mark Hart provided some valuable guidance on what circumstances would lead a reasonable person to conclude that a workplace investigator was biased or lacked the independence required of an investigator.
In that case, the Faculty Association filed two grievances on behalf of two professors who were the subject of separate investigations, each conducted by a different external investigator. Professor M was the subject of a complaint of discrimination made by another professor under Toronto Metropolitan University (TMU)’s human rights policy, and TMU hired Investigator A to investigate that complaint. Professor V was the subject of a complaint under TMU’s Workplace Civility and Respect Policy, which deals with complaints of harassment falling under the Ontario Occupational Health and Safety Act (OHSA) but not Ontario’s Human Rights Code.
In Professor V’s case, the complaint was “institutional,” which means TMU acted as the complainant because the professors who raised concerns about Professor V’s conduct did not want to make a formal complaint or participate in the investigation as complainants. TMU hired Investigator B to investigate the allegations against Professor V.
The Faculty Association argued that Investigators A and B lacked the impartiality required of investigators under the Human Rights Code and the OHSA because:
Arbitrator Hart, who heard the two grievances together, dedicated most of his decision to the Faculty Association’s argument that the way TMU retained the investigators created a solicitor-client relationship (or the appearance of one) which created a reasonable apprehension of bias.
Arbitrator Hart held that the retainers with Investigators A and B did create a solicitor-client relationship, which created a reasonable apprehension of bias. The retainers of Investigators A and B were the same in most respects because Investigators A and B came from the same law firm. They described TMU as entering a “legal services relationship” with the investigators. Moreover, the retainers each said that “in order to preserve the privilege attached to reports” from the investigators to TMU, the investigators would render their reports to TMU “as legal counsel.”
Arbitrator Hart held neither Investigator A nor Investigator B could be seen as unbiased given that TMU created a solicitor-client relationship with them.
Hart reviewed the requirements for investigators required by the Human Rights Code and OHSA, and found the legislation required investigators to be unbiased and independent. According to Hart, Investigators should be seen as having a reasonable apprehension of bias if “an informed person, viewing the matter realistically and practically and having thought the matter through could reasonably perceive bias on the part of the Investigators…or would think it is more likely than not that the Investigators whether consciously or unconsciously would not decide fairly.”
In Hart’s view, an informed person would view the existence of solicitor-client relationships between the investigators and TMU as antithetical to the requirement of impartiality because solicitors must put the interests of their clients above all others. While an employer’s primary interest in retaining an investigator to conduct a harassment investigation might be in having an appropriate investigation conducted, the employer would also have interests, such as avoiding liability and preserving its reputation that may be at odds with its interest in a fair investigation. An investigator in a solicitor-client relationship with the employer cannot disregard those other interests of the employer.
Moreover, a solicitor has a duty not to withhold any relevant information in the solicitor’s possession from their client. Hart believed that this duty would raise doubt in a reasonable person’s mind about the investigator’s ability to maintain confidentiality in an investigation.
Hart did not agree with any of the Faculty Association’s other arguments. He did not find that conducting a threshold assessment of the allegations created a reasonable apprehension of bias. A threshold assessment requires a decision maker – here the investigator – to decide whether the allegations if taken as true would result in a finding that harassment occurred. According to Arbitrator Hart, preparing a list of allegations for a respondent did not create a reasonable apprehension of bias either.
Finally, the investigator’s impartiality was not negatively affected by sharing with TMU their expertise about how to proceed in a case where complainants who raised concerns about harassment did not want to file a formal complaint.
The key takeaway for employers is not that lawyers are never appropriate workplace investigators. In fact, Arbitrator Hart himself observed that lawyers’ “legal training skills and abilities can make them very good at doing this work.” Rather, the takeaway is that retainers of lawyer-investigators should be structured to make it clear that the investigator is independent and is not conducting the investigation in the capacity of a lawyer for the employer.
Chris Davidson is a lawyer and workplace investigator at Turnpenney Milne LLP in Toronto.
