I have been an adjudicator for four different administrative tribunals over the course of more than 20 years. This experience has served me well since I have found that many adjudicative skills are transferable to investigations.
There are, of course, some notable differences between administrative law hearings and investigations. Administrative law hearings usually operate under the open court principle: their hearings are open to the public and their decisions are often published (on CanLII). Investigations, on the other hand, are conducted on a confidential basis and rarely made public. Furthermore, unlike adjudicators, investigators often wear multiple hats in that they are both the gatherer of the evidence and the arbiter of that evidence.
Administrative tribunals operate under a statutory regime, often augmented by procedural rules that govern what a tribunal will decide and how its hearings will be conducted. The applicable statute and rules guide the parties, their representatives, and the decision-makers throughout the proceedings. There are statutes that apply to investigations too, such as Ontario’s Occupational Health and Safety Act and the Canada Labour Code, along with their associated regulations and guides. These regimes, however, are less detailed than most statutes that apply to administrative tribunals. Most organizations also have policies in place that address how an investigation will proceed in general terms, leaving room for flexibility. Often, an investigator determines the appropriate process as the investigation progresses, based on what is fair and appropriate in each case.
The following are, in my view, good practices that apply equally to administrative hearings and investigations.
Report writing. Report writing is somewhat similar to decision writing. The main difference is that an investigator also has to explain the process followed. I have found that what works well with decision writing likewise works well with report writing: write early, succinctly, and clearly. By early, I mean that procrastinating will only make the writing process more tedious. Even though an investigation is often done in steps (interviews happen at different points in the process), it is good practice to write as you go. Outline the introduction, the mandate, the process, the applicable policies, and the salient evidence as you obtain it. Unlike a decision, an investigation report is rarely made public. Nonetheless, the discipline that an adjudicator applies to decision writing, knowing that the decision will be publicly available, can equally and beneficially be applied to writing investigation reports. The use of plain (though not overly informal) language makes reports, as well as decisions, more readable and easier to understand for any audience. Refrain from providing unnecessary information. You are not a scribe; only the information that is directly relevant to an allegation should make its way into the report.
The report introduction. Just like a succinct decision introduction will guide the reader on what the matter is about, a few introductory paragraphs in an investigation report can do the same. Too often I find that investigation reports start off with the details – getting into the mandate and the specific allegations – without providing enough background information to situate the reader with the organization, the department at issue, the parties, and the nature of the allegations. I have adopted the practice of starting every investigation report with a few introductory paragraphs that explain what the investigation is generally about: who is the client, what do they do, who are the parties, what type of work do they do, what is the relationship between the parties, and what is the general nature of the allegations.
Fairness. As an adjudicator, being subject to the rules of natural justice, legislative rules respecting how tribunals conduct hearings (such as Ontario’s Statutory Powers Procedure Act), the law of evidence, and other applicable procedural rules attunes one to considerations of fairness. Many of the rules relating to natural justice and fairness applied by administrative tribunals are equally applicable to investigations: ensuring the parties know the case they have to meet, disclosure and discovery rules, the opportunity to reply, etc. Since an investigator is responsible for the process, it is important to remember that the process must be fair. This means that a respondent should receive the allegations prior to responding to them. If the allegations reference documentary evidence (such as an email), this evidence should also generally be disclosed. Similarly, new evidence provided by a respondent or a witness that directly addresses an allegation should be shared with a party for an opportunity to reply to it.
Decision making. I have learned not to be afraid of making a decision! This may seem obvious, but I have often been frustrated by investigation reports that refrain from making findings. An adjudicator does not have the luxury of writing that they were unable to reach a decision. The standard of proof in investigations is the balance of probabilities, and the burden of proof generally lies with the complainant. The burden of proof is either met or it is not.
I take the same approach to my factual findings in investigations. Is the allegation proven or not proven, based on the applicable standard and burden of proof? One of the few times where it may be appropriate to decline to make a finding is if there is relevant evidence that would likely have assisted in determining the matter but which you were unable to access, such as information from a witness who declined to participate or who you were prevented from contacting. Otherwise, a finding should be made one way or another.
By the same token, I also refrain from making unnecessary findings. These are findings beyond what is necessary to resolve the complaint. For example, if a finding of harassment is made based on multiple allegations, consider whether it is necessary to address every last of these allegations, or whether you can arrive at a reasoned conclusion based on the most serious allegations.
And, you may ask, what has being an investigator taught me as an adjudicator? First and foremost, to respect the difficult work done by competent investigators. Investigators have to be all things: the evidence gatherer, the process determiner, the fairness arbiter, and the decision maker. Not an easy task!