Resources: Investigations

  • Have I Constructively Dismissed an Employee by Putting Them on Unpaid Administrative Suspension?

    October 2018

    by Jordan Michaux

    A recent decision from the Ontario Court of Appeal confirmed that suspending an employee without pay (i.e. an “administrative suspension”), including while the employer conducts an investigation, can constitute constructive dismissal. The Court provided guidance on when and how employees can be placed on suspension during an employer’s investigation.

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  • “Investigation is the New Arbitration”: Thoughts on Our Changing Workplaces

    July 2018

    by Gavin Marshall

    Every seasoned human resources professional is aware that “investigation is the new arbitration”. When addressing issues of all but the most serious and blatant misconduct, employers are now routinely counselled that if they shoot first and ask questions later, they do so at their peril.

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  • The Significant (and Avoidable) Costs of a Poorly Run Workplace Investigation

    October 2017

    by Brandon Hillis

    A recent decision of the Ontario Court of Appeal acts as a cautionary tale for all employers when it comes to conducting (or not conducting) workplace investigations.

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  • Maintaining Privilege Over An Employer’s Internal Accident Investigation

    October 2016

    by Alissa Demerse

    A recent decision of the Alberta Court of Queen’s Bench underscores the importance of taking early steps to retain legal counsel to assist employers with serious workplace accidents. In Alberta v. Suncor Energy Inc, 2016 ABQB 264, certain documents and records created or collected during an accident investigation were protected by litigation and solicitor-client privilege where legal counsel made decisions with respect to the accident investigation within hours of the event.

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  • Do Employees Have an Expectation of Privacy in Their Text Messages?

    September 2016

    by Delayne Sartison K.C.

    Information and evidence obtained from social media or electronic communications is playing an increasingly important role in the workplace, but employers must be conscious of employee privacy rights.  As a result, the Ontario Court of Appeal’s recent decision regarding whether there is a reasonable expectation of privacy in sent text messages is of particular interest to employers.

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  • Employer Pays For Shoddy Workplace Investigation

    August 2016

    by James D. Kondopulos

    The B.C. Supreme Court’s decision in Lau v. Royal Bank of Canada, 2015 BCSC 1639 provides a reminder of the crucial importance of conducting a fair, objective and thorough workplace investigation, especially where dishonesty or fraud is alleged.

    An investigative stitch in time could well have saved the employer in this case nine months’ worth of damages for failure to provide termination notice, $30,000 in aggravated damages and costs.

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  • Is that “Confidential” Investigation Report actually Confidential?

    May 2016

    by Graeme McFarlane

    If not set up properly, that “confidential” investigation report may not be so confidential after all. An Ontario arbitrator has ruled that an investigation report prepared by a lawyer is not covered by solicitor-client or litigation privilege as a matter of right. In Durham Regional Police Association v Durham Regional Police Services Boardthe arbitrator ordered production of an investigation report to the union which was dissatisfied with the employer’s handling of a harassment situation.

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  • Aggravated Damages in Wrongful Dismissal Claims

    March 2016

    by Michael R. Kilgallin

    Two recent B.C. court cases illustrate the type of evidence employees will need to produce to establish a claim for aggravated damages related to the termination of their employment.

    In Honda Canada Inc. v. Keays, the Supreme Court of Canada affirmed the ability of employees to seek aggravated damages in addition to pay in lieu of termination notice (common law or contractual).


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  • Domestic violence in the workplace – not just the NHL’s problem

    December 2015

    Sadly, it is far too common that we hear of news headlines involving professional athletes charged or convicted of assaulting their partners or spouses, e.g. “Kings Defenseman Voynov Suspended Indefinitely”, and “TSN Analyst Aaron Ward Arrested.”

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  • Bullying and Harassment: The treatment of complaints and claims by WorkSafeBC and employers

    November 2015

    by Ryan Copeland

    Effective July 1, 2012, the Workers Compensation Act has included broader coverage for mental disorders arising from workplace incidents, including bullying and harassment. Consistent with its mandate to not only provide coverage for workplace injuries, but to also …

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