Law Times

Page 10 November 14, 2016 • Law Times www.lawtimesnews.com Strategies needed BY MICHAEL MCKIERNAN For Law Times S mall businesses need to develop a workplace investigation strategy to avoid being overwhelmed by the requirements of new sexual harassment legislation, according to a To- ronto employment lawyer. Bill 132, Ontario's Sexual Violence and Harassment Action Plan Act, which came into effect this September, requires employers in the province to conduct investigations into incidents and com- plaints of workplace harassment. That task could prove particularly onerous for employers at the smaller end of the spectrum, many of which oper- ate without a human resources depart- ment to speak of, let alone a specialist in conducting investigations, according to Jeremy Hann, a lawyer with Baker & McKenzie LLP. "Larger-scale and more institutional employers are probably already attuned to this. They've been doing workplace in- vestigations for eons. "But for smaller businesses, it's going to be a new concept," says Hann, who is a member of the firm's Toronto labour employment and regulatory law practice group. "Maybe they outsource their payroll and rely on membership in industry groups for day-to-day HR issues that come up. "Now they're being told to do some- thing that requires a very specific set of skills, and many are simply not equipped." Despite the difficulty, Hann says busi- nesses of all sizes have an incentive to get investigations right, since Ministry of Labour inspectors will be checking up on standards. Depending on the circumstances, they can even order a third-party inves- tigation carried out at the employer's ex- pense if they decide methods weren't up to scratch. "We're telling smaller clients that they need an action plan for this type of com- plaint, because they are very time sensi- tive, and delaying an investigation can cause all sorts of issues," he says. "Whether that means hiring a new HR professional or an owner doing some training or having a third party they can call, it's important to have some sort of plan in place." Jennifer MacKenzie, co-founder of Toronto firm JMJ Workplace Investiga- tions Law LLP, says a lack of internal re- sources is one reason some smaller busi- nesses have been driven to hire external investigators, despite the potential ex- pense of such a move. According to MacKenzie, almost a third of her firm's clients have fewer than 50 employees. "The other issue with smaller com- panies is sometimes it can be difficult to maintain neutrality. If a complaint is against a manager or someone senior within the organization, then it's possible that the person with HR responsibility may actually be under the control of the person complained against," MacKenzie says. Still, simply having a larger workforce or the institutional backing of a govern- ment department or agency does not insulate an employer from conducting a faulty investigation, as the recent case of Raj Shoan showed. Shoan, a government-appointed com- missioner with the Canadian Radio- television and Telecommunications Commission, was fired from his posi- tion after Diane Laurin, an outside in- vestigator hired by the CRTC, found he had harassed the commission's executive director over a prolonged period by at- tempting to undermine her credibility with superiors and staff, humiliating her in front of colleagues and attempting to "to destroy her career and reputation." However, in September, Federal Court Justice Russel Zinn overturned the report's findings, concurring with Shoan's characterization of the process as a "witch hunt" where the investigator "looked into essentially every detail and interaction commissioner Shoan had with CRTC staff to try to find harass- ment, rather than examining the com- plaints themselves to determine if harass- ment occurred." The investigator's embellishment of evidence, deficient analysis of the emails at the heart of the complaint and appar- ent deference to CRTC chairman Jean- Pierre Blais all lent weight to the claim that she approached the investigation with a closed mind, Zinn found. "I have concluded that an informed person viewing the Investigation and Re- port realistically and practically, having thought the matter through, would con- clude that the standard of open-minded- ness had been lost to the point where on the balance of probabilities it would be said that the issue the Investigator was to determine had been predetermined," the judge added. "In my view, Commissioner Shoan was denied procedural fairness and natu- ral justice." Jennifer White, a lawyer with Rubin Thomlinson LLP in Ottawa, says Zinn's decision offers a goldmine of guidance for workplace investigators and trainers like her. Although the case originated in the federal jurisdiction, she says many of the lessons from the case hold for the com- ing wave of Bill 132 investigations at pro- vincially regulated employers. "Justice Zinn did a very extensive analysis, which is quite surprising but also quite awesome because we don't have a lot of judicial guidance on the substance of investigations," White says. "Workplace investigations are on the cusp of becoming very popular. We're going to see more and more of them, so to get a piece of case law like this is in- credibly helpful." LT FOCUS Jennifer MacKenzie says a lack of internal resources is one reason some smaller businesses have been driven to hire external investigators. Congratulations Graham J. Clarke On the 25th anniversary of Clarke's Canada Industrial Relations Board For 25 years, Graham has written and updated successive editions of this classic work (previously Canada Labour Relations Board: An Annotated Guide), offering precise summaries of reported Board cases, insightful commentary, and invaluable cross- references between key Canada Labour Code sections. Clarke's Canada Industrial Relations Board contains 45 years of board case law and incorporates all recent major Code amendments. Graham J. Clarke, a bilingual labour arbitrator/ mediator, served as a Canada Industrial Relations Board Vice-Chair from 2007-2016. In addition to acting as legal counsel to the Board's first Chair, Mr. Marc Lapointe, Q.C., Graham practised labour, employment and administrative law for two decades in private practice. He is currently a roster arbitrator for the Canadian Railway Office of Arbitration and Dispute Resolution, as well as an approved arbitrator on the Federal Minister of Labour's list for Code and other employment-related matters. © 2016 Thomson Reuters Canada Limited 00240HF-84829-RM

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