CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
7.2 Specific Rules In Canada, access to personal data collected during an HR internal investigation is governed by privacy laws, such as PIPEDA (federally) and provincial leg - islation in some provinces (eg, BC’s PIPA, Alberta’s PIPA, Quebec’s Act respecting the Protection of Per - sonal Information in the Private Sector). As noted in 7.1 Collecting Personal Data , employers may wish to obtain meaningful consent from the employee for the collection, use and disclosure of their personal data. In unionised workplaces, express and implied employee privacy rights in collective agreements may also set out specific rules governing the collection, use and disclosure of personal data that apply in the context of workplace investigations. For unionised employ - ers, investigators should ensure that they comply with any requirements imposed in the collective agreement regarding the collection, use and disclosure of per - sonal data. 7.3 Access A party may have a limited right to access personal information about themselves that is collected in an HR internal investigation depending on the applicable legislation or internal policies of the particular employ - er. However, as a general rule, none of the parties have a right to access records related to the commence - ment, investigation and disposition of a workplace complaint unless there are specific statutory require - ments that provide for disclosure of the report or of certain other information (see above). 7.4 AI Employers and investigators have started to explore using AI in workplace investigations as a means of increasing productivity and decreasing costs. While the use of AI brings certain benefits, it does not replace the human element of workplace investiga - tions and users ought to be aware of the associated risks, particularly as they relate to privacy and data protection concerns. Regardless of how AI is used, human review is always an essential component and AI should never be a substitute for human decision- making in investigations. One of the most common potential uses of AI is to assist with automated notetaking through transcrip - tion tools to increase accuracy and lower administra -
tive costs. If investigators opt to use AI in this manner, it is important to note that these tools are still suscep - tible to misinterpretation and missed speech. For this reason, investigators should not rely exclusively on automated notetaking. Another common use of AI is to assist with drafting. AI can be used to draft parts of an investigation report. If AI is used for drafting purposes, employers and inves - tigators need to ensure that the conclusions reached and methodologies used are still a product of their own analysis and application of skills and judgment, should the investigation be challenged in the future. Employers and investigators have also started to use AI for reviewing evidence, particularly where a work - place investigation involves extensive documentation. AI may be used to identify relevant documents or key information within documents. Similarly, there are still risks associated with missing details or nuances that could become crucial to the investigation, mak - ing it imperative to ensure that human review always accompanies the use of AI. Additionally, employers and investigators must be alert to the growing risk of deepfakes and other AI-generat - ed content being used to fabricate or manipulate evi - dence provided in workplace investigations. Advances in generative AI now make it possible to create highly realistic audio recordings, videos, images, emails, or written communications that may appear authentic but are, in fact, entirely fake or altered. This presents significant challenges for credibility assessments and evidentiary reliability. Investigators must approach digital evidence with increased scrutiny, take steps to verify the provenance and integrity of materials, and avoid relying on any single piece of digital evidence without corroboration. Where concerns arise, it may be advisable to consult with a IT forensic specialist. The potential for AI-generated evidence underscores the continuing importance of human judgment and careful credibility assessments.
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