While the law continues to evolve, one longstanding principle remains unchanged: workplace investigations must be impartial, both in practice and appearance. The Toronto Metropolitan Faculty Association v Toronto Metropolitan University [TMU] decision reaffirmed this principle and clarified that investigators cannot simultaneously maintain a solicitor-client relationship and appear independent.
Even in the absence of actual improper conduct, the appearance of the investigators' bias in TMU was sufficient to breach the requirement of investigative independence. The decision underscores an important lesson for organizations: they must ensure that their arrangements with external investigators do not create—or appear to create—a solicitor-client relationship.
Background
The University engaged external investigators to investigate workplace complaints involving two professors. The investigators' engagement agreements referenced solicitor-client privilege, stated that legal services would be provided, and specified that the reports would be rendered as legal counsel.
The union requested that the investigators be replaced due to bias on different but related grounds. After the University denied the request, the union filed a grievance that proceeded to arbitration.
Decision
The Arbitrator confirmed that the investigators were required to be impartial based on the nature of the investigations. In addition to the significant consequences that could flow from the allegations, the University had a statutory duty under the Human Rights Code [Code] and the Occupational Health and Safety Act [OHSA] to ensure that the investigations were reasonable and appropriate in the circumstances. Accordingly, the investigators were required to be unbiased in reality and in appearance.
Despite a contractual clause stating the investigations would be "independent," the Arbitrator found that the engagement agreements, when read as a whole, reasonably created the appearance of a solicitor-client relationship between the University and the investigators. This perceived relationship compromised the appearance of impartiality and undermined the investigators' findings.
While lawyers can act as workplace investigators, they must not simultaneously serve as legal counsel in the same matter. A solicitor-client relationship imposes a duty on the lawyer to prioritize the client's interests, which inherently conflicts with the duty of an investigator to remain neutral.
As a result, the Arbitrator held that, even though the investigations were not actually biased, the reasonable perception of bias tainted the process. Accordingly, University's obligations under the Code, the OHSA, and its internal policies were violated.
The union also alleged that the investigators compromised their impartiality by preparing summaries of allegations and conducting threshold assessments (i.e., determination of whether the allegations, if assumed true, would constitute harassment or discrimination). The Arbitrator disagreed, clarifying that both steps were appropriate and that preparing a summary of allegations is "a component of good investigative practice".
Takeaways for Employers
- Do not promise confidentiality: To remain impartial, investigators cannot promise that the communications that they receive or produce will remain confidential under solicitor-client privilege. Employers should refrain from promising their employees absolute confidentiality, as the employer may be ordered to produce the investigation report or other investigation documents if the dispute is escalated.
- Avoid the appearance of bias: Whether the investigation is conducted by an internal or external investigator, the process must be—and appear to be—impartial. The investigator cannot appear to have a legal duty or relationship that suggests alignment with any party involved in the investigation.
- Communicate carefully: All communications between the investigator and the participants should reflect the impartial nature of the process. It should be clear that no conclusions have been reached in advance of the investigation's conclusion.
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.
