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September 12, 2011

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PAGE 2 NEWS September 12, 2011 • Law timeS independent Lawyers playing key roles in human rights probes A BY KENNETH JACKSON For Law Times n increasing number of employers are turn- ing to lawyers acting as investigators to probe allegations of workplace harassment instead of handling it themselves and potentially having the case end up before the Human Rights Tribunal of Ontario, says Toronto lawyer Barry Weintraub. Weintraub, who has been carrying out independent in- vestigations for employers for the last eight years, said it's their duty to ensure a proper inves- tigation takes place. "In most workplaces, the run-of-the-mill cases are investigated internally. When it's a bigger matter, they will very often turn to outside counsel to do investigations." According to Weintraub, law- yers working as investigators can go about the job in a fair and in- dependent way. "It makes sense to have lawyers doing them for a couple reasons. One is that the results can be privileged advice to the company, so it isn't pub- lic information. And the second is one of the things lawyers are skilled at is issues of fairness in hearings," says Weintraub of Ru- eter Scargall Bennett LLP. He got his start in investiga- tions when a client brought him allegations of fraud in the work- place. Such matters have now be- come a regular thing, particularly given the high number of cases of alleged harassment and hu- man rights violations that weren't properly investigated and ended up at a tribunal. As a result, employers could face paying hefty damages to an employee. One such case involved the Toronto Police Service and a female constable who received damages after a ruling in October 2010 that the employer hadn't done a proper investigation when she complained of workplace ha- rassment. In turn, the tribunal ordered Chuvalo, said a male co-worker had sexually harassed her. She filed an internal harassment complaint on Sept. 24, 2007, just months after returning to work from disability leave. Chuvalo claimed a co-worker made sexually suggestive com- ments to her, including one in- ferring she was a bimbo. There were also moments of leering eye contact and harassing incidents involving her race, ethnicity, and place of origin. Overall, she could recall nine incidents in a short period of time. 'As an investigator, the prima- ry thing is to listen to what people have to say,' says Barry Weintraub. the force to hire a human rights expert to help it develop new training materials to properly investigate cases of harassment and discrimination. It gave it four months to do so and train staff on how to properly inves- tigate internal complaints. The female constable, Ivania A month after she filed her internal complaint with the force, it said she needed to re- take her police training because too much time had elapsed be- tween when she went on dis- ability in 2001 and her return to work in May 2007. Chuvalo said this was reprisal for her complaint and named Supt. Mark Fenton as the officer responsible. She couldn't take the training due to medical rea- sons and was placed on unpaid leave in January 2008. The following June, Fenton wrote Chuvalo saying he was seeking her termination. By August, she was fired. Chuvalo later filed a com- plaint at the tribunal, which agreed that her work environ- ment "stripped her of her digni- ty as a woman, served to isolate her within the unit, and made going into work very stressful." Chuvalo received $20,000 in damages. According to Weintraub, the tribunal's decision ultimately came down to whether there was a proper investigation. "The police service board appointed an [internal] investi- gator, but the tribunal said the investigator lacked the proper training," he says. Weintraub adds he has al- ways had a positive reception when called in to investigate because people usually want to have their say. "When you look at the legal process, a big part is letting people have their say and be heard. I have always found people are willing YOUR SOURCE OF ESSENTIAL LEGISLATION NEW EDITION CONSOLIDATED ONTARIO SMALL CLAIMS COURT STATUTES, REGULATIONS AND RULES, 2011-2012 MR. JUSTICE MARVIN A. ZUKER Access a wealth of relevant, up-to-date statutes, regulations and rules for your small claims matters with this comprehensive, portable, and easy-to use guide. NEW IN THIS EDITION This edition features amendments to the Rules of the Small Claims Court, and deals with new rules for service, defence, costs, and enforcement of orders. Revised forms are also included in this new edition. 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Even unions are open to the idea because they typi- cally want allegations investi- gated fairly, Weintraub notes. "They are very often happy to have independent investigators come from the outside because it takes away bias and some- times makes things easier be- cause you are not investigating people you have to work with." Vinay Sharma, director of hu- man rights at the Canadian Auto Workers, says the union doesn't use independent investigators because they generally don't have the necessary experience to deal with its workplace culture. In- stead, it has its own small group of "competent" investigators with training on specific issues. "We believe in solving our is- sues with all stakeholders finding common ground," says Sharma. "We have bargained joint anti- harassment committees in many of our workplaces. We have excel- lent experience with this process." Sharma notes the CAW AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 started its own human rights department in 1995 in response to what he describes as a rapidly changing workforce. "Organiz- ing and mergers brought many more women, workers of colour, different religions, and workers of different sexual orientation. Recognizing the importance of including all groups within the union builds a stronger union and ultimately gets back to the basics of what the union is all about: solidarity." But Weintraub says that when he's investigating, he's basically just giving his opinion on what happened. He calls the process a fact-finding mission. "I tend not to make recommen- dations about what ought to be done," he says. LT Untitled-8 1 www.lawtimesnews.com 11-09-08 4:39 PM

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