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Investigations and the New Normal: Assessing Credibility and Reliability in Pandemic Investigations

Larissa Donovan, .

Workplace investigations can be stressful for all involved. When they happen in the midst of a pandemic (ie. COVID-19), the stress is inevitably amplified. It is crucial for investigators and employers to manage the general anxiety of parties in these conditions. For this reason, we offer a variety of options and alternative measures for conducting interviews.

Even prior to the COVID-19 pandemic restrictions, we have conducted interviews via telephone, videoconference, and now we offer in-person interviews with precautions like masks and social-distance protocols when appropriate.

However, it is also imperative for employers to know that, whatever form their workplace investigation takes, it is conducted fairly. The legal principles of procedural fairness are critical. These time-tested principles inform what a fair workplace investigation looks like and ensure that it is “appropriate in the circumstances”[1] as required by the Occupational Health and Safety Act.

Our previous post on Procedural Fairness in the Investigation Process gives more detail on the nuts and bolts of key procedural fairness measures that are expected in the context of a workplace investigation.

No matter the format (online, in-person, telephone), there are consequences when an investigation isn’t promptly or properly conducted. Courts and tribunals consider how quickly the employer responds to a complaint when finding liability and calculating human rights damages. A pandemic is no excuse for sacrificing the rights of employees to a fair and timely investigation.

Virtual Interview Options: Phone and Videoconferencing

Recently, a Court dealing with the new challenges posed by COVID-19 rejected the objections of a litigant to delay proceedings due to concerns such as: not being physically present in a neutral setting; the difficulty of assessing a witness’s demeanour remotely; and risk of utilizing technology to abuse the process.[2]

It was decided that the challenges associated with using alternatives to in-person hearings do not outweigh the interest of advancing the matter before the Court. The Court candidly stated: “We no longer record evidence using quill and ink…We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”[3]  Similarly, a workplace investigation should not be delayed due to the unique challenges of our new normal.

The Occupational Health and Safety Act requires that an employer take every safeguard reasonable in the circumstances for the protection of a worker.[4] The Act gives employers the ability to decide how complaints of workplace harassment will be investigated and develop a process for doing so but must ensure investigations of harassment allegations are “appropriate in the circumstances.”

Delay

It is reasonable that the circumstances of a worldwide pandemic may justify some delay to account for organizing employees who may, at this time, be working remotely or not working. However, a timely investigation is another major procedural fairness concern. The reason for delay must be proportionate to the length and impact of the delay.

Delaying an investigation can significantly impact the parties and the rights of employees. Claiming COVID-19 restrictions as the reason for a lengthy delay is unlikely to be successful in the case of workplace harassment complaint. Employers have already suffered severe consequences for inaction or failing to investigate employee complaints.[5]

See John Curtis Post Duty to Investigate — “A Ticking Time Bomb” for an example of why, when a claim of harassment or misconduct is made, a workplace investigation cannot wait.

How Real Are the Risks of Virtual Interviews?

As for methods of investigation in a pandemic, we recognized that, for a variety of reasons, a video conference interview could be inappropriate or inaccessible to some complainants, respondents and witnesses. This may mean parties are more comfortable meeting in person while wearing masks or conducting interviews over the phone. This ultimately begs the question of whether an investigation is lacking when investigators cannot observe someone’s conduct or facial expressions during interviews.

Do telephone interviews and interviews in which the investigator cannot see a complainant or respondent’s face and or mannerisms impact the fairness? Much has been written and contemplated, including by the highest court in the country, about the necessity of investigators seeing someone’s face in order to make credibility assessments. This deals with what is called “demeanour evidence”. Having access to what the court calls “the demeanour package” refers to observing the face, body language, voice, mannerisms, etc. of witnesses.

In the case R v. N.S.,[6] the issue was whether an accuser witness would be able to testify with her face covered by her niqab during trial. The Supreme Court was tasked with balancing the right to religious freedom with the accused’s right to a fair trial. The Court held that, even when a witness has a sincere religious belief, they will be required to remove their niqab or religious covering if it poses a significant risk to the defendant’s right to a fair trial. Things that could contribute to “significant risk” include whether the witness’ testimony is fundamental to the trial and whether that testimony is disputed.  

However, a strong dissent from Justice Abella highlighted how “the court system has many examples of accepting evidence from witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments.”[7] Investigators also have large toolbox to make credibility assessments even if we don’t see someone in person. The majority in R v. N.S. also acknowledged being able to see the face of a witness is not the only or the most important factor in accurate credibility assessment.[8]

When conducting workplace investigations in the time of COVID, we are dealing with the right to a fair investigation and the right to participate safely by phone or by wearing a mask. Thankfully, since workplace investigations are not subject to the absolute highest procedural fairness requirements such as those required when testifying in a criminal trial, we do not need to choose between fairness and safety.

Justice Abella acknowledged in the case above seeing more of someone is better than seeing less. In the case of telephone or masked interviews, we are still left with things in the “demeanour package” like voice, tone, conversation style. However, evidence over the years has proven that many of the things we used to believe we could read into as evidence of truth or deception like body language, eye-contact, a red face etc. should not hold much weight. We know that non-verbal demeanour or conduct during an interview can be the result of cultural differences, anxiety, fear, or personality differences that investigators may make the mistake of misreading.

Instead of relying on facial expressions or nervous ticks to make credibility assessments of people we do not even know, we look to directness of answers, consistency of story, narratives that hold together, reference to time and events that can be corroborated, clear motivation or lack of motivation to lie, and, as always, documents and witnesses. These are all things that can still be easily accessed in pandemic investigations.

There may even be advantages to telephone or Zoom interviews. For example, interviewees who experienced trauma can often have gaps in memory but sometimes being in a comfortable setting, like in their home on the telephone, can help minimize the stress of an interview and allow the witness to tell their story more coherently.

Workplace investigations have not been put on hold nor has the evidence provided been compromised by COVID-19 measures. See our previous post: “Workplace Investigations During a Pandemic: 3 Things We Have Learned” to learn more about what we’ve been doing to address and accommodate new investigation challenges in a pandemic.


[1] Occupational Health and Safety Act, S 32.0.7 [OHSA].

[2] Arconti v. Smith, 2020 ONSC 2782 at para 18 [Arconti].

[3] Arconti at para 19.

[4] OHSA, s. 25(2)(h)

[5] See, Boucher v. Walmart, 2014 ONCA 419 and Bassanese v. German Canadian News Company et al., 2019 ONSC 1343

[6] R v. N.S.,2012 SCC 72 [R v. N.S.].

[7] R v. N.S. at para 82.

[8] R v. N.S. at para 27.