CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
8.5 Multi-Jurisdictional HR Internal Investigations
and violence set out in 8.2 Sexual Harassment and/ or Violence and 8.3 Other Forms of Discrimination and/or Harassment . There are no additional specific protections against bullying or mobbing in particular. Where mobbing has occurred, there is the additional possibility of an investigator or court characterising the harassment as creating a poisoned work envi - ronment. A poisoned work environment arises where harassment, bullying or discrimination in a workplace creates a hostile, negative, intolerable workplace for employees. It may arise from a serious, stand-alone incident or from persistent and repeated wrongful behaviour. 8.4 Criminal Cases As discussed in 6.6 Communications to Authorities , in situations where a workplace issue involves poten - tial criminal behaviour such as fraud, theft, workplace violence or sexual assault, an employer may need to consider whether to report the allegations to the police or other authorities. If the police commence an investigation, an employ - er will need to determine if an internal investigation should still be continued or if it should defer complet - ing its investigation pending any determinations by the police. If both proceed concurrently, there can be the risk of inconsistent findings between the two investi - gations, which could impact an employer’s ability to rely on the findings reached in its own investigation. However, in some circumstances, continuing with an internal investigation may be preferable especially where there is a separate, statutory obligation to carry out an investigation. Additionally, the burden of proof is much higher in criminal cases, so internal investi - gations might reach a different outcome that can still form the basis for a termination, civil lawsuit or other forms of discipline.
There are no special procedures that an employer must follow in cases that are multi-jurisdictional in nature (whether across multiple provinces or coun - tries) and there are no restrictions on foreign employ - ers carrying out HR internal investigations.
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