Investigation Reports are Not Admissible as Evidence in Arbitration Proceedings for the Truth of the Matter Asserted:
In an adjudication before the The Public Service Grievance Board ( an Ontario tribunal for the resolution of employment disputes within the Ontario Civil Service for non unionized employees) , Adjudicator Andrew Tremayne had a case where the Ministry conducted a lengthy investigation with respect to allegations of misconduct of a manager at a correctional institution.
The case is called Dunscombe v The Crown in Right of Ontario ( Ministry of the Solicitor General ( PSG# P-2017-1547.
In response to an attack by the Complainant ( the dismissed employee) on the investigation, the Board made the following comments:
[7] Counsel for ( the Complainant) raised many concerns about the fairness of the investigation by CSOI and the fairness of the allegation meeting. Those processes are quite different from an adversarial proceeding before the Board. Typically, unless the parties agree otherwise, an investigation report has limited use in a hearing because it provides evidence only of the basis (in whole or in part) for an employer’s decision to discipline an employee. An investigation report is not proof of the “facts” underlying the events. Parties before the Board are obliged to prove their cases based on facts either agreed-to or established by admissible evidence through the testimony of witnesses who are examined and cross-examined under oath.
[8] At the same time, the Board has consistently held that a hearing provides a complainant with a full opportunity to present all relevant evidence to challenge the employer’s decision and that this cures any defect in the process that led, in this case, to the termination of employment. In other words, this decision is based on the evidence presented by the parties and not on the findings of the CSOI report.
My Comment:
In my practice both as a mediator and an arbitrator, I find that many parties ( and sometimes their lawyers) fail to understand this very important distinction. Having spent thousands of dollars on a workplace investigation, they are sometimes shocked to find that it is of little or no use at the trial or the arbitration because they have to still prove all the underlying facts through witnesses and documents.
In an adjudication before the The Public Service Grievance Board ( an Ontario tribunal for the resolution of employment disputes within the Ontario Civil Service for non unionized employees) , Adjudicator Andrew Tremayne had a case where the Ministry conducted a lengthy investigation with respect to allegations of misconduct of a manager at a correctional institution.
The case is called Dunscombe v The Crown in Right of Ontario ( Ministry of the Solicitor General ( PSG# P-2017-1547.
In response to an attack by the Complainant ( the dismissed employee) on the investigation, the Board made the following comments:
[7] Counsel for ( the Complainant) raised many concerns about the fairness of the investigation by CSOI and the fairness of the allegation meeting. Those processes are quite different from an adversarial proceeding before the Board. Typically, unless the parties agree otherwise, an investigation report has limited use in a hearing because it provides evidence only of the basis (in whole or in part) for an employer’s decision to discipline an employee. An investigation report is not proof of the “facts” underlying the events. Parties before the Board are obliged to prove their cases based on facts either agreed-to or established by admissible evidence through the testimony of witnesses who are examined and cross-examined under oath.
[8] At the same time, the Board has consistently held that a hearing provides a complainant with a full opportunity to present all relevant evidence to challenge the employer’s decision and that this cures any defect in the process that led, in this case, to the termination of employment. In other words, this decision is based on the evidence presented by the parties and not on the findings of the CSOI report.
My Comment:
In my practice both as a mediator and an arbitrator, I find that many parties ( and sometimes their lawyers) fail to understand this very important distinction. Having spent thousands of dollars on a workplace investigation, they are sometimes shocked to find that it is of little or no use at the trial or the arbitration because they have to still prove all the underlying facts through witnesses and documents.
If you like a copy of this case, email me at barry@barryfisher.ca