CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
5.2 Internal Regulations In addition to providing particulars to the respond - ent in advance of meeting with them, an employer can prescribe additional internal procedures such as imposing timelines, or opportunities to review a draft of the investigation report before finalising, for example. Given the myriad of issues that can lead to a workplace investigation, and as this is an evolving area of law, an employer may wish to reflect on what additional internal procedures or requirements they may wish to impose, if any, as once such procedures are in place they can be difficult to remove and, if not followed, can result in a workplace investigation being challenged for failing to follow its internal procedure. 5.3 Burden and Degree of Proof The complainant (the person making the allegations or complaint) has the onus of proving the comments or conduct occurred. The standard (or degree) of proof in a workplace inves - tigation is generally on a “balance of probabilities”; also known as the “civil standard”. In other words, the workplace investigator must decide whether it is more likely than not that the comment or conduct occurred. 6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation Once an investigator has collected all of the evidence related to the matters being investigated, the evi - dence must be reviewed, considered and analysed. The investigator will often assess the credibility of those interviewed and make factual findings and con - clusions. Depending on the mandate, the workplace investigator may also be asked to make recommenda - tions for the organisation to consider. If a complaint is abandoned, an organisation may still wish to proceed with the investigation, particularly if there are any concerns about systemic issues in the workplace.
6.2 Procedure for Ending an HR Internal Investigation When a workplace investigation has come to an end, it is good practice for the employer to advise those who participated in the investigation that it has concluded. In some jurisdictions in Canada, the law requires that the worker who allegedly experienced harassment and the worker who was alleged to have engaged in the harassment to be informed of the results of the investigation and any corrective action that has been or will be taken as a result of the investigation. 6.3 Conclusion At the end of a workplace investigation, there is often a report. While a “report” can be verbal, it is generally recommended that a workplace investigation report be written. A written report provides a record of the process followed, the evidence collected and ana - lysed, the findings of fact and the conclusions made (which can be referred to at a later date if needed). 6.4 Reports Written reports can take different forms. For example, a “written report” in a relatively straightforward inves - tigation may be an email from the internal investigator to whomever tasked the investigator to conduct the investigation. On the other side of the spectrum, a written report can be lengthy and include appendices setting out important documents or other evidence referenced in the report. There is no “one way” to draft an investigation report and it will often depend on the mandate, the subject matter and complexity of the allegations. However, well written reports are gener - ally ones that can be read by a third party who then understands what the investigator was tasked to look into, what was investigated and what was ultimately determined to have occurred. Written reports, while not required, often contain the following information: an introduction which provides some background as to what lead to the investigation; information regarding the mandate of the investigator; the parties involved and process followed; an analysis of the evidence and assessment of credibility; an application of the evi - dence to the workplace policies and/or legal analysis (depending on the mandate – ie, whether an allega - tion is substantiated or not as compared to whether the allegations, if substantiated amount to a violation of a workplace policy or statute); findings of fact; a
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