Objectives of a Quality Investigation

• Can minimize legal liability (if any).
• Can assist in identifying and implementing any proactive steps or measures to prevent a recurrence.
• Can allow an organization to move forward with certainty to take appropriate action to correct the problem (if necessary).

When to Investigate

• The issue or concern identified, or the complaint being made, fits within the scope of the internal discrimination policy or the “prohibited grounds” under the Ontario Human Rights Code.
• As soon as possible, in order to minimize liability, costs, disruption, employee morale and privacy/confidentiality issues.

• Internal policies, procedures (written vs. oral complaints, signed statements)
• Informal Fact Finding vs.
• Formal Investigation
• Who conducts the investigation?
  • Internal vs. External
  • More than one investigator?

• Types of evidence (direct, indirect)
• Concept of “Best Evidence”
• Retention of evidence: maintaining an investigation file
• Safety, Confidentiality and Privacy Issues

• Prima facie case
• Civil standard – Balance of Probability: “evidence in support of the allegations is sufficiently credible to lead a fair minded person to make a finding of discrimination…”

• Prima Facie Case: There is a statement from a complainant setting forth allegations against the “respondent” which, if they are accepted “on their face”, indicate that discrimination has occurred.
• The “burden of proof” would then shift to the respondent (the one being accused) to refute the allegations and establish that discrimination did not occur, or that the respondent had a Code-related defense, which allows certain narrowly-defined kinds of discrimination to occur.

• Governed by the Statutory Powers and Procedures Act
• Anything relative to the subject matter is admissible (more relaxed standard)
• Can determine issues of credibility, reliability

• Right to a timely, neutral, unbiased investigation
• Right of respondent to know who made complaint (i.e., the complainant)
• Right to know outcome (disclosure)
• Limits to the right of disclosure (privacy considerations)
• Right to representation
• Right of respondent to know case (particulars) against him/her and opportunity to reply (right to be heard)
• Right to appeal or reconsideration