The recent decision of Mark Hart sitting as an arbitrator appointed under a collective agreement considered whether the investigator, hired by the employer in a solicitor client capacity, violated the expected terms of a neutral and unbiased investigation by this fact. 1 The issues reviewed included whether such a fact situation was contrary of the terms of the collective agreement and also the duty of fairness in the investigative process under the OHSA and the Human Rights Code.
The short answer is that the decision determined that an appointment of a lawyer in a solicitor client relationship to the employer violates the collective agreement and duty of fairness in the exercise of these statutory investigative functions. Although this is an arbitral decision, there is every reason to expect that it may well be applied to common law workplace investigations with or without a statutory underpinning.
The Collective Agreement
The agreement mandated that the employer, Metropolitan University, would exercise its management rights in a “fair and reasonable manner”, consistent with the collective agreement. There is nothing earth-shattering in this clause and indeed, it is consistent with the expected common law standards of fairness and good faith. The conclusion reached was that the investigation should be conducted fairly, with due process, in an unbiased manner and independently. This is independent of the statutory functions to be discussed momentarily. The decision relies upon the workplace policy to define this duty of fairness.
Human Rights Code
The same standard of a “reasonably investigating” is required for such a process under the Code. Such an investigation must be “impartial”, done with an “open mind”. It must be impartial and be seen to be impartial. The parties must have no doubt as to the independence of the investigator.
Occupational Health & Safety Act
Arbitrator Hart agreed that while the statute does not specifically set out the standards of the investigation, a fair interpretation is that the investigation should be impartial and objective.
The Test
Dealing with both statutes, the decision noted that the investigative process is one “very close and analogous to the performance of an adjudicative function”, hence allowing the “usual test for the reasonable apprehension of bias” to apply. The correct test, Hart concluded was that cited by the Federal Court in Whitelaw v Canada, namely, whether an informed objective bystander would think that the decision-maker, whether consciously or otherwise, would not decide fairly.
In essence, the test then applied by the Arbitrator was that there must be “no reasonable apprehension of bias”.
The decision continued to review the standards expected of a solicitor to their client, which were concluded to be “antithetical to the fulfillment of the impartial, unbiased, independent and objective role” required of an investigator under the two statutes and the employer’s policies.
This being said, the mere fact that the investigator was retained in a solicitor-client capacity, was determined to be sufficient to create such a reasonable apprehension of bias. There was no need to show factually based conflicts.
This is not a decision which will be confined to arbitral jurisprudence, given the review of the two statutory functions. As noted above, the collective agreement mirrors the standards expected of a common law relationship, as will likely be set out in most employer manuals, not that this latter issue should be decisive.
The first question then to be asked of the investigator under any workplace investigation is whether this person in a solicitor-client mandate with the employer. If so, the person being examined will have a delicate decision to make, whether to refuse to participate in the process, submit, or propose to participate on a without prejudice basis.
This last position was taken by one of the grievors in this instance. The investigation was still ongoing at the time of the decision. The decision allowed a potential remedy to this grievor, should the final report find against him, presuming the requested remedy arose from the issues raised in this grievance and not any additional matters arising from the report. 2
As usual, the law is evolving. The fundamental precept on which this decision is based is clearly sound. There is a conflict as wide as imaginable between the duty owed by a solicitor to their client and the duty to perform a neutral, unbiased and fair investigation. The more astounding question is why this argument has not been previously raised.
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