In my role as review counsel at Rubin Thomlinson LLP, I review the workplace investigation reports that are prepared by the firm’s investigators to ensure that they are legally defensible. Clients also ask that I do the same for reports that they have prepared internally. When I review investigation reports, one of the things that I assess is whether there are gaps in the evidence. In other words, I consider whether there is any evidence that is relevant to a matter at issue that has not been addressed in the report. A serious gap in evidence, or the accumulation of many gaps, could lead to a report that is not legally defensible.
At Rubin Thomlinson, we usually organize the evidence and findings of fact by allegation. This means that each evidentiary section is short and typically deals only with one event. This makes my job of checking the evidence much more manageable than if there were pages of evidence dealing with many allegations at one time. For each allegation, I assess the evidence to ensure that it is complete.
The types of evidentiary gaps that I encounter tend to be similar from report to report. I have summarized these here, as I think it can be helpful for investigators to know about some of the more common “pitfalls”:
- The complainant has raised multiple concerns about one event, but evidence was not obtained from the respondent and witnesses (if any) about each of those concerns. For example, a complainant alleges that during one meeting, the respondent yelled, hit their fists on the table, and left the meeting by slamming the door. Evidence should be sought from the respondent and witnesses on each of those concerns because each, if true, is potentially harassing behaviour.
- A party identifies that there was a direct witness to an alleged incident, but the evidence of that witness does not appear in the report and there is nothing to explain why they were not interviewed. If a party identifies that there was a witness present for an incident, then the report should summarize the evidence of the witness or give a reason why the witness was not interviewed (e.g., the witness declined to participate).
- The report indicates that a party referred to their notes when giving evidence, but there is nothing else in the report about those notes (e.g., when they were made, whether the investigator obtained a copy, what the notes indicate). Similarly, if an allegation arises in a context in which notes would normally be made (e.g., a yearly performance evaluation meeting), then it would make sense for the investigator to proactively address this in the report. The investigator would do this by indicating that notes were sought, and the outcome of that request. If there are notes, then the substance of these notes needs to be addressed.
- The report states that a party referred to relevant documentary evidence, but there is nothing further in the report about that documentary evidence (e.g., the investigator does not state whether the evidence was obtained, has not summarized it, or attached it to the report). For example, if a complainant indicates that they texted the details of an incident to a co-worker immediately after it happened, then the text should be reproduced in the report and/or attached as an appendix. If the complainant no longer has the text, then this should be stated in the report.
- The investigator relies on evidence to make adverse findings of fact against a party, but there is nothing in the report to indicate that the evidence was shared with that party. Generally, we want the report to show that we conducted the investigation fairly, by allowing the parties to respond to the evidence against them before making a finding that is unfavourable to them. For example, a complainant alleges that the respondent said, “Your work is absolutely terrible,” during a meeting between the two of them and a colleague. The evidence of the respondent and the colleague is that the respondent said, “I wouldn’t call the work that we did on this project terrible, but let’s talk about how we can improve it.” Before accepting the alternate version of events, we would share with the complainant what the respondent and the colleague said, and obtain the complainant’s evidence on it. We would then summarize in the report the complainant’s reply evidence.
Admittedly, it typically takes quite a careful read of the evidence to pick up on these issues. For those of you who are tasked with reviewing investigation reports, I recommend setting a lot of time aside to do this and to do a “deep dive” in the evidence rather than a cursory review. This will help to ensure that the report is thorough and free of evidentiary gaps.