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44 J U N E / J U L Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m blower hotline to encourage co-workers to report sexual misconduct, says Marianne Plamondon, a Montreal employment law- yer with Langlois lawyers. The use of audits or assessments to determine the health or toxicity of the workplace is another recourse that employers are exploring, she says. The U.S. Equal Employment Opportunity Commission has suggested rewarding supervisors if harassment com- plaints increase, at least initially, because "if employees are filing complaints of harass- ment, that means the employees have faith in the system." It seems, at least anecdotally, that employers are getting the message that once they become aware of a complaint they need to act promptly. In Ontario, at least, that involves conducting investi- gations, something that employment and labour lawyers encourage employers to do regardless of if the law requires it. But, here again, caution is key. Many investigations conducted internally or by a third party are poorly done. "That then is adding insult to injury," says Rubin. "So, you already have somebody coming forward and complain- ing, which is a difficult thing to do, and the organization doesn't do an adequate job of it." Rubin knows that of which she speaks. She led the independent investigation of the Canadian Broadcasting Corpora- tion following the dismissal of radio host Jian Ghomeshi, and her law firm was hired late last year to probe allegations of inap- propriate behaviour within the Prime Min- ister's Office. More recently still, Rubin Thomlinson was mandated by the City of London to review its harassment poli- cies and develop an interim reporting sys- tem and investigation process after dozens of employees claimed they felt reports of harassment were not taken seriously. There can be a price to pay for poorly conducted investigations into complaints of sexual harassment. In Smith v. Vaux- hall Co-Op Petroleum Limited, a wrongful dismissal case released last year, the Court of Queen's Bench of Alberta held that an internal investigation concluding that the plaintiff had committed sexual harassment and sexual assault against a subordinate was inadequate and its findings were incor- rect. The court dismissed the claim, finding that the plaintiff 's dishonesty regarding his relationship with his subordinate and his personal harassment were enough to jus- tify a termination with cause. But the court found the allegations of sexual harassment were unfounded. It turns out the investiga- tor did not interview witnesses, did not ask for specific details of the incidents and it was not clear whether the investigator had discussed the allegations with the plaintiff. Interestingly, the court left the door open for an adverse costs award. In another case released in 2016, Joshi v. National Bank of Canada, the Ontario Superior Court of Justice concluded that a failure to provide an employee with an opportunity to respond to allegations made against him could amount to a breach of the employer's duty of good faith. "You want to have somebody who knows what they are doing and who knows from a process perspective but also understands substantively the area of law and, right now, you don't always have both," says Rubin. "Case law informs our work and deep- ens our understanding of what is fair and The 2018-19 Atlantic Legal Telephone Directory connects you to your legal community providing accurate and essential legal contact information in all four Canadian Atlantic Provinces. Find over 4,300 listings of lawyers, firms and judges. Each year find new and updated names, mailing addresses, email addresses and phone numbers for lawyers and law offices. Get quick, easy access to: • Law and Barristers' Societies • Courts of Appeal • Federal Court of Canada • Government of Canada departments • Judicial districts and judicial officials • Incorporated Municipalities • Land registration and information services • The Associations of Land Surveyors • Law Foundation • Provincial government departments • Boards and Commissions • Law Related Services, Institutions and Organizations • University law faculties ... and much more. Perfectbound • June 2018 $47.50* • L7798-8402 ISBN • 978-0-7798-8402-5 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) Stay connected with the 2018-19 Atlantic Legal Telephone Directory. Order your copy today. Visit www.store.thomsonreuters.ca or call 1-800-387-5164 for a 30-day, no risk evaluation Connect to Atlantic Canada's LEGAL NETWORK Untitled-7 1 2018-05-25 11:51 AM

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