CANADA Trends and Developments Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
Filion Wakely Thorup Angeletti LLP 333 Bay Street, Suite 2500 Toronto, Ontario M5H 2R2 Canada
Tel: +1 416 408 5514 Fax: +1 416 408 4814 Email: toronto@filionlaw.com Web: filionlaw.com
The workplace investigation is an essential tool for legal counsel, human resources professionals, and in- house legal teams across Canada. The rise in investi - gations over the past ten years has resulted in some important lessons for employers on procedure and best practices. Courts and tribunals are also increas - ingly intervening to review the actions of employ - ers relating to workplace investigations. This article focuses on trends and developments in investigations in 2025. In recent years, the legislative landscape has changed such that many organisations are legally obligated to carry out internal investigations in certain circum - stances (ie, where there have been complaints of discrimination under human rights legislation or com - plaints under health and safety legislation and/or poli - cies). Additionally, many organisations also choose to undertake investigations in circumstances where there is not a specific legal obligation to do so. In Canada, an internal workplace investigation may be required or advisable when a concern or allegation is raised regarding the workplace which, if true, would: (i) amount to workplace harassment and/or workplace violence; (ii) constitute a violation of human rights leg - islation (such as racial or gender-based discrimination or sexual harassment); (iii) constitute employee mis - conduct which may result in an employee’s termina - tion of employment for “just cause”; and/or (iv) pose a legal or reputational risk to the organisation.
Over the past year, we have identified three develop - ments and trends related to workplace investigations, which include: • increased attention on integrating inclusivity in workplace investigations; and • the rise of specific issues in investigations, includ - ing those related to off-duty misconduct and alle - gations of mobbing. Integrating Inclusivity in Workplace Investigations One of the core responsibilities of workplace investi - gators is to safeguard the integrity of the investigation and procedural fairness owed to the respondent(s). The concept of procedural fairness is necessarily flex - ible, and its specific requirements will vary depending on the context of the workplace investigation. Proce - dural fairness includes, but is not limited to: • the right to an impartial and unbiased investigation; • the right to be provided with a meaningful oppor - tunity to understand the allegations, with adequate time to respond through some level of participa - tion; and • the right to be informed of the outcome of an investigation. In the past year, many investigators are focused on strategies to integrate inclusivity in workplace inves - tigations, particularly as they relate to procedural fair - ness. Employers and investigators are increasingly recognising that integrating inclusion in workplace investigations is essential to ensuring that participants feel heard and marginalised or disadvantaged groups
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