Our Process

Our investigations are fundamentally grounded in procedural fairness, natural justice, and statutory compliance. But what does that mean, exactly? And why is it important?

Canadian common law (in addition to the Charter of Rights and Freedoms) requires proceedings to be conducted fairly if they carry potentially adverse consequences for an individual. What is required for a given proceeding to be considered fair varies contextually. For example, in the context of a criminal law or immigration hearing, where the possible outcomes include loss of liberty or deportation, procedural fairness requires that participants have a right to legal counsel, even if they cannot afford it. Conversely, motorists who receive a ticket for a parking error are not automatically entitled to appointed legal counsel. This moving target of procedural protections based on the severity of possible outcomes is otherwise known as the doctrine of procedural fairness.

Courts and arbitrators across Canada have held that workplace investigations are to be conducted in a manner which is procedurally fair and not contrary to the principles of natural justice. Generally speaking, employers who are found to have conducted an unfair or biased investigation are not permitted to rely on that investigation and may therefore be liable for wrongful termination or other reputational harm.

Most HR professionals are not taught about the principles of procedural fairness. Many lawyers, arbitrators, and judges struggle with the challenging task of identifying the correct level of procedural protections required by the doctrine of procedural fairness in different contexts. It can be a challenging task for employers to ascertain and apply the appropriate procedural protections to the context of a workplace investigation.

Dismissed employees who chose to bring legal action against their employers following an investigation often attack the procedural fairness of that investigation. This is one of the primary reasons why employers choose to hire independent experts who are trained to conduct reliable investigations and write defensible reports.

100% of the billed value of our work is protected by a procedural fairness warranty. We are proud to offer this assurance and note that no known competing service provider offers a warranty of this nature. 

Our warranty is as follows: If any judge or arbitrator should issue a decision finding our investigation to be procedurally unfair, we will reimburse the full value of our services plus any applicable HST and disbursements - subject to the limited exclusions below. 

• What is covered by the scope of this warranty? The investigative methodology used by the investigator is guaranteed to be procedurally fair. This includes any procedural action or choice made by the investigator.

• What falls outside the scope of this warranty? Rarely, factors can arise beyond the investigator's control or involvement which may render the process or outcome unfair. Such factors are understandably outside the scope of this warranty, and include but are not limited to: collusion or intimidation between witnesses, employer investigation policies which are inherently unfair, undue delay from participants, non-cooperation of key witnesses, the destruction or tampering of evidence, and any impermissible conduct of the employer or its agents. 

Please note that we cannot guarantee or warrant any particular investigative result, or that any particular disciplinary action may be justifiably taken against an employee on the basis of our work. Clients are strongly encouraged to consult with their legal counsel prior to taking disciplinary action, as many complex factors are involved in the legal defensibility of termination or other significant discipline.

We utilize investigative methodology consistent with HRPA's Workplace Investigation Practice Standards. Unless otherwise required, all of our meetings are conducted remotely via the Zoom platform, which provides access to meeting recordings and transcripts in addition to generating time and cost savings.

The investigation process varies depending on the requirements contained within each workplace investigation policy. However, procedural fairness imposes the following minimum requirements upon the process: an impartial decision-maker must be used, the respondent must have a meaningful opportunity to be heard and to hear the opposing evidence, and valid reasons must be issued for the final decision. 

These procedural protections effectively impose a general investigative process:

• A written complaint is submitted or contemplated. An investigator is ordinarily selected at this time, and the parties are referred to the applicable workplace policy;

• The respondent is given an opportunity to submit a detailed written response to the complaint;

• The investigator has initial one-on-one interviews with the complainant and the respondent, presenting opportunities to elaborate on their version of events, identify witnesses, and supply other evidence. Trauma-informed investigative techniques are utilized where appropriate;

• The parties are given transcripts of their own interviews following each meeting and are asked to correct any inaccuracies;

• Witness interviews are conducted one-on-one, taking appropriate safeguards for confidentiality;

• The respondent is notified of all relevant adverse evidence and given a meaningful opportunity for consideration and comment;

• Specific follow-up questions are prepared for participants to more thoroughly evaluate credibility and competing versions of events. Follow-up meetings continue as necessary until the investigator is satisfied they have received sufficient information to make defensible findings of fact and credibility;

• A detailed investigation report is generated, showing a clear and reasoned assessment of the applicable workplace policy, the position of the parties, the evidence received, and witness credibility. The report makes reasoned factual findings on the basis of accepted evidentiary principles, and then determines whether those facts violate the policy in question;

• The final report is issued to the employer, and ordinarily to both parties as well. The employer decides what action, if any, to take as a result of the investigation.

In addition to our investigative expertise and unique procedural fairness warranty, we embrace a fully remote business model. This means we have limited overhead compared to most competitors, resulting in sizeable cost savings that are passed down in our billable rate.  

Fairness, transparency, confidentiality, and affordability are our core values.  We look forward to showing those values to you in practice.