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bunal of Ontario confrmed that it is “well-established jurispru- “You really need to have a roadmap, an idea of where you’re
dence” that failure to investigate discrimination claims can attract going and in which direction you’re heading,” says Dufort-Lan-
liability, even if the tribunal ultimately dismisses the underlying glois, Senior Counsel at Intact Insurance.. “A lot of these inter-
allegations of discrimination. nal investigations just fall on your desk and need to be handled
“You have to apply a level of risk analysis when you discover quickly. The tendency can be to just go into fve directions at
these things to determine what you are dealing with here,” says once and just grab pieces of information, bits and pieces here
Jull, Counsel at Gardiner Roberts LLP, who recently completed and there. That’s not going to lead you to an optimal result.”
a two-year interchange as General Counsel with the Competi- But not all investigations are going to have the same process
tion Bureau. each and every time, points out Klasios, Head of Legal and Com-
pliance at DuPont Canada. “Your roadmap may look differently
for different types of investigations. It depends on what it is.”
Regardless of the plan laid out, the project management ex-
a roadmaP ercise should begin with ascertaining whether there is a legal
obligation to investigate and where that obligation arises, ad-
vised Kelly Harbridge, Global Director of Labour Relations and
An organization that has determined an internal investigation Associate General Counsel at Magna International, at a CBA
is warranted should lay the groundwork before getting started, conference on workplace investigations. Understanding where
as employers have also been held accountable for shoddy work- the obligation arises will help frame the scope of the investiga-
place investigations. That’s what happened to Walmart Canada tion, which in turn will help to determine how expansive the
in 2015. In depicting Walmart’s conduct as reprehensible in investigation needs to be.
Boucher v. Wal-Mart Canada Corp., the Ontario Court of Ap- It’s equally important for employers to adhere to workplace
peal issued a stern reminder to employers that failing to prop- or collective agreement policies, as they may impose procedural
erly investigate allegations of harassment in the workplace can requirements—something that the courts, tribunals and arbi-
be costly, and ordered the retailer to pay $410,000 plus 20 weeks’ trators pay attention to, as Walmart discovered when it was cas-
salary to a former employee. tigated by Ontario’s appeal court for paying only “lip service” to
The lessons are clear: a properly conducted internal investi- its internal written policies.
gation seeking to uncover credible information about alleged
signifcant wrongdoing or ethical lapses must be taken seriously Labour lawyer emma PHiLLiPs
as well as be organized, complete, fair and impartial. Since in- of Goldblatt Partners LLP says it
vestigations can be complex, time-consuming and disruptive, it would be “helpful and construc-
is essential that General Counsel or the head of the investiga- tive” if more employers either de-
tion create a plan that sets out the scope of the investigation, veloped their own internal inves-
establishes protocols and appoints competent investigators. tigation protocols or negotiated
protocols with unions “to have
some clear sense” of what consti-
tutes a fair investigation.

“ exercise should begin with ascertaining whether there is a

regardless of the plan laid out, the project management

legal obligation to investigate and where that obligation arises.
understanding where the obligation arises will help frame the
scope of the investigation, which in turn will help to determine how
Associate General Counsel, Magna International”
expansive the investigation needs to be.
Kelly Harbridge, Global Director of Labour Relations and

16 CCCa MaGazInE | SPRInG 2019 PRInTEMPS