Who investigates the investigator?
June 1, 2023
Who is qualified to be a workplace investigator in Ontario? According to a recent decision by the Ontario Labour Relations Board, it might be anyone.
In Erin MacKenzie v Orkestra the Board ruled that the Occupational Health and Safety Act does not require investigators to hold any particular qualifications.
The complainant had looked up the investigator on LinkedIn and refused to participate because she thought the investigator was unqualified. Some peculiarities arose during the investigation, including:
- the investigator not responding to the complainant’s questions about their qualifications directly and instead directing the inquiry to the CEO who was also the respondent
- the respondent directing the complainant to participate in the investigation
- the investigator calling the complainant’s questioning of her qualifications “a sham” (but indicating she was doing so “respectfully”)
Yet the Board did not find that any of this rendered the investigation inappropriate. The Board found that failing to participate was fatal to the complainant’s case.
The Board’s decision turned on the fact that lawyers generally could carry out investigations, referring to a Ministry of Labour guideline. It reasoned that the complainant should have participated in the investigation, then challenged the investigation based on inadequacies which actually arose, rather than assuming the investigation would be flawed and refusing to participate. If the complainant went ahead with the investigation, the result may have been favourable to her and she wouldn’t need to challenge it at all.
The Board had a chance to provide some clear guidance on what skills and experience an investigator may be required to have but did not do so. The Board’s approach could be summed up as, “everyone is qualified to conduct an investigation unless they give it a shot and at the end prove themselves unqualified.”
Essentially, the Board found that the correct time to challenge the investigator’s qualifications would have been once the investigation was already complete. But in our view, only accepting the process after knowing the outcome is inherently problematic. In philosophy this would offend the “veil of ignorance” which urges one to judge a process and accept its results before knowing the conclusions. Experts are arguing in favour of applying this approach more broadly to combat bias.
In fairness to the Board, it is unclear which approach – challenging the investigation up front, or waiting until it’s complete – will be more efficient overall. Allowing parties to quarrel over investigator selection could be used as a tactic to stall investigations. Yet continuing an irreparably flawed investigation introduces a host of inefficiencies as well. Completing an entire investigation, only to have to re-do it later on because the investigator proves themselves unqualified, is far less efficient than doing it properly in the first place.
The value of using a trained investigator
Not everyone has the necessary expertise to conduct a workplace investigation. While it may be that no specific certifications are required, there will undoubtedly be instances where an investigator ought to be held to a higher standard.
The Board decided that lawyers are generally competent enough to conduct workplace investigations. Lawyers do possess skills that can translate to workplace investigations, but much of what happens during the process requires investigators to go beyond legal text and consider the impact of the process. A legal finding may be the end goal but how you get there is equally, if not more important.
Harassment allegations vary in nature and severity. Experienced investigators understand the importance of adapting their approach to suit the needs of those involved. There is no “trauma informed approach” section on the bar exam.
Perhaps most important of all, investigators are trusted to make findings independently which can have profound consequences for the parties and the employer. In doing so, investigators ought to possess more expertise on assessing credibility and reliability than the average person. At a minimum, they ought to be trained in recognizing biases, to be critical of the evidence and their own judgments. Given the Board’s guidance to wait to challenge a completed process, it is now arguably more important for employers to ensure they select a demonstrably qualified investigator. Employers who do not may be confronted with an order to conduct a second investigation, a costly outcome for them and a potentially insensitive one for the parties who are required to retell their experience.