CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
3.9 Minutes Different investigators use different methods of col - lecting verbal evidence from an interviewee; some options include: handwritten notes, typed notes, audio recordings and signed statements. No matter what option is used, the primary objective is to ensure the accuracy of that evidence. When taking notes, the investigator should make notes of not only the information provided by the interviewee but also the questions asked. An investigator should document the evidence using the words of the interviewee and should not paraphrase. Asking interviewees to “sign off” on the accuracy of a summary of their interview or the notes of the investigator is a good way of enhanc - ing the reliability of the notes. Having an interviewee approve any notes also avoids potential disputes at a later date as to what was said during the interview. 3.10 Recording Workplace investigation interviews can be recorded. However, the investigator must tell the party being interviewed it will be audio recorded. While recording an interview may be the best way to ensure the accu - racy of the information collected, it can sometimes have a chilling effect on some individuals and/or the individual may refuse to be recorded. In such circum - stances, the investigator may wish to have to another method of recording the evidence available. In practice, it is often challenging or impossible to ensure that interviewees are not recording the inves - tigation on their personal devices, particularly where the interview occurs remotely or by video-conference. Canada is subject to the “one-party consent rule” for recording conversations, which means that if some - one is part of a conversation, they can legally record it without telling the other participant. Nevertheless, interviewees who surreptitiously record investiga - tions could still face other legal or disciplinary con - sequences depending on the applicable privacy laws or company policies. As noted in 7.1 Collecting Per- sonal Data and 7.2 Specific Rules , various workplace privacy laws may require that a party be advised if their data is being monitored and collected, includ - ing through recordings. Certain unionised workplaces may also have specific rules, express or implied priva - cy rights in collective agreements that require advising on the collection, use and disclosure of personal data.
If there are concerns that an interviewee is recording an investigation interview without permission, employ - ers and investigators are well advised to remind the interviewee of their confidentiality obligations, any applicable policies or laws, and the potential conse -
quences for non-compliance. 3.11 Other Fact-Finding
In addition to obtaining evidence from interviews, a workplace investigator should consider obtaining any other types of evidence (such as emails, documents, text messages, photos, video, etc) that may be rel - evant or necessary to conducting their investigation. While such additional evidence may supplement, cor - roborate and/or contradict evidence provided by inter - viewees, such evidence will often assist a workplace investigator to assess the credibility of those inter - viewed and ultimately make findings and conclusions. 4. Protection of the Parties During an HR Internal Investigation 4.1 Protection of the Reporter Employers should take actions to protect all parties involved in an investigation, including the complain - ant, reporter and/or respondent. In every province and federally, human rights legisla - tion prohibits reprisals against employees that make a complaint of discrimination, harassment or seek to enforce their human rights protections (see for exam - ple, Section 8 of the Ontario Human Rights Code). A reprisal is any negative consequence for taking part in a complaint process. Similar protections exist for employees that make complaints or seek to enforce their rights under occupational health and safety leg - islation (see for example, Section 50 of the Ontario Occupational Health and Safety Act). Employers should take steps to ensure that an employee, wheth - er a complainant, reporter or witness, is free from any reprisals. If an employee is subject to adverse treat - ment (for example, their employment is terminated) as a result of making a complaint or due to an employer’s failure to take measures to protect the employee from a reprisal, the employee can seek a number of rem - edies including reinstatement or monetary damages.
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