How investigators try to determine truth of harassment claims

When allegations of harassment were levelled at MP Erin Weir, the NDP hired a third-party investigator to probe the claims. The party then launched a similar process last week after MP Christine Moore was accused of behaving inappropriately toward an Afghanistan veteran.

The Liberals are also employing the services of an independent investigator after MP Kent Hehr was accused of sexual harassment over alleged incidents during his time as an Alberta MLA. 

And the Conservatives turned to an outside labour lawyer to examine the how the party handled allegations of sexual misconduct against former Ontario MP Rick Dykstra.

We make sure to make it clear to everyone involved that no conclusions have been made — no conclusions will be made — until the conclusion of the investigation- Lisa Talbot, Torys LLP

But it's not just political parties that have used such services. The CBC hired a third-party investigator to look into the network's handling of former radio host Jian Ghomeshi's workplace behaviour. And a workplace investigator recently cleared TVO host Steve Paikin of sexual harassment allegations.

Many of these cases could be probed in-house. But in the wake of the #MeToo movement and suspicions raised over whether such in-house investigations can be objective, some are turning to employment lawyers to lend credibility to such probes, especially in high-profile cases.

Lisa Talbot, whose Toronto-based firm Torys LLP recently investigated and cleared Green Party Leader Elizabeth May of workplace harassment, says she's seeing more requests of this kind.

"I can't speak to whether there's a direct connection to [the #MeToo movement], but I have seen an uptick," Talbot said. 

These investigations certainly don't come cheap and can cost thousands of dollars, depending on the length of the probe, which can last days, weeks or months.

Investigators spend that time interviewing the complainant, the individual accused and any possible witnesses, as well as poring over any material evidence (letters, emails, texts, etc.)  before concluding whether harassment has occurred.

Facts complicated

"More likely, though, when we're retained, it's because the facts are somewhat complicated and there's a number of witnesses that are going to need to be interviewed," said Catherine Milne, whose firm Turnpenney Milne LLP recently investigated and cleared TVO host Steve Paikin of sexual harassment allegations.

Talbot said investigators tell everyone involved that the fact a complaint has been made, or that certain questions are being asked, doesn't mean someone has done something wrong.

"We make sure to make it clear to everyone involved that no conclusions have been made — no conclusions will be made — until the conclusion of the investigation, that we're keeping an open mind," she said.

"There's a lot of balancing to be done in investigations. And there are personal reputations at stake."

In reaching a conclusion, Milne said investigators do not use the same evidentiary standard as criminal court proceedings, where the "beyond reasonable doubt" threshold is needed to convict.

Instead, it's similar to a civil case, where harassing behaviour is deemed to have occurred based on a balance of probabilities — it's more likely than not.

"What you're doing is you're assessing the credibility of the parties and the witnesses; frankly trying to determine whether their evidence is plausible and whether it's corroborated by others, whether they've omitted particulars of evidence that would … make it inherently unbelievable," Milne said.

For example, investigators may look for proof in video cameras to determine whether the complainant and the individual  accused were both at the same place at the time the alleged incident took place.

"Even in a he said/she said, there are things that you can can look at to assist in corroborating. And you will test their evidence against motive to determine whether or not there's any reason to potentially falsify the allegations or to lie about having participated in the acts that they've been accused of," Milne said.

'Not behavioural analysts'

Talbot says investigators are "not behavioural analysts" and instead must look for inconsistencies in the stories being gathered.

"We've gone back to someone and gone over the same sort of factual ground: Are there any changes in the person's story that might cause concern that that can't be explained?"

She said they will also take into account non-verbal cues that might address credibility issues.

"Just the nature of being in an investigation itself can be daunting and nerve-racking. We know that. And then we're conscious of the fact that may lead to a certain lack of comfort in presenting one story. But we do look at things like eye contact and fidgeting and so on."

Talbot said it's relatively rare — at least in her own experience — that investigators are dealing with a true he said/she said, with nothing else corroborating the claims.

Toronto-based employment lawyer Howard Levitt said he believes most companies are wasting money by hiring outside counsel to conduct independent investigations.

In most cases, he said, they generally have the resources and personnel to conduct such probes themselves.

He also argues lawyers are not trained to conduct such investigations. 

"Lawyers are the worst people to do it. The skill set we have is not made for neutral investigation," he said.

Cross-examining involves trying to get a predetermined result, Levitt said, and is a very different skill set than neutral investigations. "The skills that we develop are opposite of the skills required to do a neutral findings."

While Milne agrees companies can conduct their own investigations, often independent investigators are called in to ensure a "non-biased and independent" review and can look at a case with "a clean lens."

Meanwhile, Talbot disagrees that lawyers aren't good investigators. 

"We know how to ask questions. We know how to deal with witnesses. We know the law and the legal standards against which the evidence that we're collecting has to be applied," she said.

"So I don't think that lawyers are inappropriate investigators by any stretch of the imagination."