Preventing an apprehension of bias when retaining lawyers as investigators

Written by Lauren Bernardi & Ryan Carroll

A recent arbitration decision highlights the risks of investigators serving as both neutral factfinders and legal counsel. It underscores the importance of defining the investigator’s role and ensuring their impartiality.^[1]

Background

The case involved two grievances filed by the Toronto Metropolitan Faculty Association (TFA) on behalf of professors at Toronto Metropolitan University (TMU):

• The first grievance related to a discrimination complaint against Professor J.M. The university hired a lawyer as an external investigator (Investigator A) to conduct a preliminary assessment to determine whether the complaint warranted a full investigation.
• The second grievance related to an investigation of allegations of workplace conflict in Professor E.V.D.M.’s department. Investigator B, a lawyer from the same firm as Investigator A, was hired to investigate.

TFA challenged both investigations. In the first grievance, they argued bias could arise because the same investigator would conduct the preliminary assessment and the full investigation. In the second grievance, they argued that the investigator’s earlier involvement, including determining the allegations, compromised their neutrality. The university disagreed and refused to change the process.

What type of investigator do you need?

The arbitrator clarified the types of investigators an organization can use:

• An external lawyer can conduct a workplace harassment investigation under the Occupational Health and Safety Act (OHSA) for an organization as a third party. Bias and procedural fairness concerns only arise if the investigator also serves as legal counsel for the organization. The retainer agreement helps define the scope of the relationship.
• Lawyers can also conduct informal investigations while serving as counsel for an organization. For instance, an employer may ask its lawyer to investigate a workplace harassment issue after legal proceedings have begun against them. In this case, the lawyer is not acting as a neutral third-party investigator conducting an OHSA investigation. Rather, they are gathering facts to provide legal advice to the employer.
• In-house investigators can conduct OHSA investigations, so long as they remain separate enough from the parties to ensure their independence and objectivity. 

The Arbitration Decision

The retainer agreements in both investigations said the investigators would provide “legal services” to TMU and prepare reports as “legal counsel”.^[2] Both retainer agreements also cited the Law Society of Ontario’s Rules of Professional Conduct and referred to portions governing conflicts of interest and the representation of multiple clients. The arbitrator held that the retainer agreements created a lawyer-client relationship between the investigators and TMU. The arbitrator then found that lawyer-client relationships are contrary to the impartiality required for workplace investigations under Ontario’s Human Rights Code (the Code) and the OHSA. As legal counsel, the investigators owed a duty of loyalty to TMU which could include:

• framing or interpreting evidence
• deciding which facts to emphasize or de-emphasize
• presenting findings in a way that align with the university’s broader interests

None of these actions are consistent with a neutral investigation.

The agreements also required the investigators to share all relevant information with the university, consistent with a lawyer’s duty of candour. The arbitrator noted that this duty directly conflicts with the confidentiality required to build trust during workplace investigations.

The arbitrator stressed there was no evidence that either investigator conducted a biased or unfair investigation. Even so, workplace investigations under the Code and OHSA also require the appearance of impartiality. As the retainers said that the investigators were lawyers for the university, they created a reasonable perception that the university’s interests could influence their findings.

However, the arbitrator dismissed TFA’s claim that the investigator’s dual role of conducting a preliminary assessment and, potentially, a full investigation created a reasonable apprehension of bias. The purpose of the preliminary assessment was to identify any allegations that might not violate legislation or university policy to help determine what, if anything, should be investigated. This was a necessary task that did not prevent impartiality.

The arbitrator ultimately held that the university breached the collective agreement by using investigators with whom it had a lawyer-client relationship. For similar reasons, he also found that the university violated the OHSA in the E.V.D.M. grievance by failing to conduct an appropriate workplace harassment investigation.

Possible implications

The TMU decision may have implications for other situations where lawyers serve as investigators. The Ontario Human Rights Commission has said^[3]:

An investigation should not be carried out by anyone who is seen as taking sides with either party. For example, it is not very likely that a lawyer who often represents management in labour disputes will be seen as “objective” by non-management employees. Similarly, a human resources manager who is normally involved in discipline and termination decisions may not be seen as independent.

Key takeaways

The decision still allows lawyers to conduct workplace investigations. It simply means that their retainer and mandate must preserve their impartiality.

Here are some key things to keep in mind:

• Avoid dual roles: Do not hire the same external lawyers to both investigate and act as legal counsel.
• Clarify roles in the retainer agreement: State that the investigator is a neutral third party and not the organization’s legal counsel.
• Maintain consistency: Ensure that all actions throughout the investigation are consistent with the role of the neutral third party.

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