Canada: "Investigation Is The New Arbitration": Thoughts On Our Changing Workplaces

Every seasoned human resources professional is aware that "investigation is the new arbitration". When addressing issues of all but the most serious and blatant misconduct, employers are now routinely counselled that if they shoot first and ask questions later, they do so at their peril.

In 2017, we witnessed relentless waves of well-publicized scandals, amplified by social media and the #MeToo movement. Some media coverage may have contributed to a popular misconception that investigating misconduct, and sexual impropriety in the workplace in particular, is a new thing. But glimmers of a new emphasis on due process in the workplace could be seen in Canadian law as long as 15 years ago.  In McKinley v. BC Tel, [2001] 2 S.C.R. 161, the Supreme Court of Canada began a conversation in the law of the workplace about fairness and proportionality.  The Court recommended that employers develop a nuanced understanding of the facts prior to taking serious steps to end employment.  Cases since then have reinforced the need to find the facts, weigh evidence including credibility, and turn over the stones before sending an employee to the gallows.  That momentum has only grown as a new demographic cohort has entered the workforce, with demands for transparency and equality in their work conditions, and the market power to make change by voting with their feet.

That trickle of due process has become a flood. Since the #MeToo movement began to shine a light on the darker corners of life for some women in the workplace, workplace misconduct and sexual harassment policies have become dog-eared and well-worn from heavy use.  There is a significant uptick in the volume of workplace investigations, relating to all kinds of misconduct.  At one point this year, the writer was advising on the day-to-day and hour-to-hour steps in four separate investigations for four separate employers.

Here are a few observations:

  • There is a tendency for human resources professionals (especially less seasoned ones) to feel that because a policy exists which presumes an investigation is triggered by a "complaint", they are hamstrung to manage a situation unless a complaint lands on their desk, or is slipped under the door of the HR department. This is not accurate. An employer always has the right and the duty to manage its workplace, monitor relationships between employees to an extent, and take the temperature of the workforce with a view to being proactive. Employers need not wait for a complaint to arise in order to solve a problem. In fact, to do so is to take a backseat in your own business.
  • Having said this, employers should be aware that respectful workplace, bullying and harassment and sexual harassment policies are their first line of defence and their best insurance against civil legal processes, and the reputational risks associated with adverse publicity relating to these hot-button issues. However, like any insurance policy, this comes with the cost of continual vigilance and improvement. It is not enough to tick the box, produce the policy and let it gather dust. Employers have to train their people and make sure that the channels to seek redress are transparent, welcoming and fully available to everyone in the workplace. The prize for consistency is that in a crisis (and one will come), the process will be resilient because the people are more likely to trust it to do good. The hazard of just "ticking the box", and only dusting off the policy when a crisis hits, is that complainants will prefer to air their complaints in the court of public opinion. There, justice is push-button swift, and the first to the registry, usually wins. Just ask Patrick Brown, former leadership hopeful, and erstwhile Premier-in-waiting in Ontario.
  • In the Brave New World of Trial-by-Facebook, employer's counsel do well to curb knee-jerk enthusiasm for the forceful cease-and-desist letter and similar legal weapons intended to silence complainants, legitimate and shady. It is not that tools have been removed from the toolbox. However, the accusation that an employer, or any large institution, attempted to silence a voice can resonate as poorly for business reputation as the substantive allegations behind them. Run this thought experiment: "How would this communication be received by the public, coming from my client, considering the context, if it was excerpted on someone's Instagram?" Similarly, recent media debate about the morality of confidentiality agreements, both in Canada and the United States, suggest that cultural norms are changing about those kinds of deals. Entering into those sorts of arrangements in the context of workplace disputes where the outcome is not definitive has previously been fairly mundane. It behooves counsel for employers to at least think about Plan B if the arrangement does not hold, and possibly draft for it.

Workplaces in Canada are currently the site of a collision between generational change, changing norms and the new tools of communication. And, as in all eras, workplaces remain an echo chamber of the pressures of modern life.  Through all this, we should not lose sight of the fact that, generally, our workplaces have gradually become fairer, more transparent and more civil over the last 20 years.  In the current environment of employee scarcity, doing things right, and having living workplace processes, has never been more clearly a competitive market advantage, and in the best interest of employers.

Previously printed in the LexisNexis Labour Notes Newsletter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Sep 2018, Other, Vancouver, Canada

A fair and thorough workplace investigation paves the way for a successful result at arbitration, trial, or hearing.

16 Oct 2018, Webinar, Vancouver, Canada

Recognizing and managing mental health issues in the workplace can be one of the most challenging human resources issues facing employers.

18 Oct 2018, Seminar, Vancouver, Canada

Recognizing and managing mental health issues in the workplace can be one of the most challenging human resources issues facing employers.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions