Choosing the Right Workplace Investigator
When a workplace complaint arises, the goal is rarely just finding the facts. The real goal is resolution. You want to know what happened, why it happened, and how to move forward to manage your risk going forward.
While there are many paths to conducting a workplace investigation, choosing an external employment lawyer to lead the process offers three distinct strategic advantages over other options, including conducting it internally.
The Protection of Privilege
In Ontario, the results of an internal or consultant-led investigation are often "discoverable." This means that if the matter ends up in court, your investigator’s notes, emails, and final report can be used as a roadmap by the opposing side to build their case against you.
When a lawyer is retained to investigate with the specific purpose of providing legal advice, the process is wrapped in Solicitor-Client or Litigation Privilege. This allows the organization to explore sensitive issues with the confidence that the work product is protected from disclosure.
It is important to note that privilege is not automatic; in many cases, an employer wants a non-privileged, neutral report to demonstrate to a court or regulator that they acted reasonably. However, in high-stakes situations where the primary goal is to obtain legal advice to prevent recurrence, or where the dominant purpose is preparation for litigation, only a lawyer-led process can offer this level of strategic protection.
Experience with the Law
Lawyers do not just check boxes. We assess evidence through the lens of a legal professional. A lawyer-led investigation is built on the framework of the Human Rights Code, the Occupational Health and Safety Act, and common law precedents.
We have experience analyzing cases to determine whether an incident falls under categories like discrimination, workplace harassment, or workplace sexual harassment, and apply it to the facts we find throughout the investigation. By applying these legal standards to the facts, we provide more than just a summary—we provide concrete, legally-grounded recommendations to help prevent future incidents from occurring.
The Weight of True Independence
When allegations involve senior leadership or systemic culture issues, internal investigations are no longer an option. Hiring an external lawyer signals to your board, your employees, and external stakeholders that you are committed to an impartial process.
Lawyers are bound by strict professional duties that demand a high level of integrity and attention to detail. We understand the high stakes of these files because we have seen the fallout when investigations are not completed thoroughly. Choosing an external lawyer ensures the inquiry is conducted with the independence required to make the findings hold up under scrutiny.
