An arbitrator has found that Toronto Metropolitan University breached its collective agreement and employment legislation by retaining external investigators who were in a solicitor-client relationship with the institution, leading to a reasonable apprehension of bias in investigations involving two professors.
Arbitrator Mark Hart addressed grievances filed by the Toronto Metropolitan Faculty Association (TFA) on behalf of professors J.M. and E.V.D.M. The grievances centred on the university’s appointment of Investigators A and B to conduct inquiries into complaints against the professors. The TFA argued that the investigators’ roles as legal counsel to the university compromised their impartiality and independence.
Hart concluded that the retainer agreements between the university and the investigators established a solicitor-client relationship or, at the very least, a reasonable perception of one. This relationship, he determined, was incompatible with the requirement for an unbiased and independent investigation under both the Ontario Human Rights Code and the Occupational Health and Safety Act (OHSA).
“The language used in the retainer agreements between the university and Investigators A and B created a solicitor-client relationship between these parties, or at the very least served to create a reasonable perception that they did so,” Hart stated in his decision.
Background
The grievances arose after the university initiated investigations into complaints where J.M. and E.V.D.M. were identified as respondents. The TFA objected to the university’s practice of appointing the same investigator for both the preliminary assessment and the subsequent investigation, arguing that this undermined the core principles of natural justice and procedural fairness.
In the case of J.M., a complaint alleging discrimination was filed on March 8, 2023. The university retained Investigator A to conduct a threshold assessment and, if necessary, proceed with a full investigation. After determining that the complaint met the threshold for further inquiry, Investigator A continued to act as the investigator. The TFA requested a different investigator, expressing concern over potential bias due to Investigator A’s prior involvement.
The university disagreed, asserting that the practice did not contravene its Discrimination and Harassment Prevention Policy or procedures. It maintained that “an investigator engaged in both the threshold assessment and investigation, if required, did not contravene the policy and was a longstanding practice in the human rights field.”
A similar situation occurred with E.V.D.M., where Investigator B was retained to conduct an organization-led investigation into workplace concerns after initial complainants withdrew. The TFA again raised objections about the investigator’s impartiality, citing the dual role in preliminary assessments and subsequent investigations.
Hart found that the retainer agreements explicitly described the investigators’ services as legal in nature, with references to “legal services,” “legal analysis,” and the intention to “preserve the privilege attached to the reports.” He noted that “the only way to create this kind of privilege is for the investigator to actually be in a solicitor-client relationship with the organization by which they are retained.”
Duty of loyalty ‘antithetical’: Arbitrator
The arbitrator emphasized that the duty of loyalty owed by a solicitor to their client is “antithetical to the fulfilment of the impartial, unbiased, independent and objective role required in an investigation.” He explained that an investigator in a solicitor-client relationship with the organization cannot be considered independent and objective, as they are obligated to prioritize the client’s interests.
“These responsibilities of a solicitor to their client are antithetical to the fulfilment of the impartial, unbiased, independent and objective role required in an investigation under the Ontario Human Rights Code or the Occupational Health and Safety Act,” Hart wrote.
He further stated that the mere existence of a solicitor-client relationship was sufficient to create a reasonable apprehension of bias. “An informed person, viewing the matter realistically and practically and having thought the matter through, could reasonably perceive bias on the part of the investigators,” he concluded.
The arbitrator rejected the university’s argument that the investigators’ roles were limited to providing legal advice solely in their final reports. He found it illogical to separate the investigators’ services into distinct parts, noting that their roles were “inextricably inter-connected.”
Other preliminary issues
Hart also addressed preliminary issues, including the TFA’s request to anonymize the grievors’ names. He denied the request, citing the “open court” principle and the presumption of openness in arbitration proceedings. However, he refrained from detailing the specific allegations against the professors to mitigate potential reputational harm.
While the investigation involving J.M. had not concluded at the time of the hearing, the investigation into allegations against E.V.D.M. resulted in the claims being unsubstantiated. The university argued that this outcome rendered the grievance moot. Hart disagreed, stating that the issues raised were systemic and of continuing consequence for the parties, warranting a determination.
The arbitrator declared that the university violated Article 3.1 of the collective agreement by failing to exercise its management rights in a fair and reasonable manner. In the case of E.V.D.M., he also found a violation of section 32.0.7(1)(a) of the OHSA by not conducting an investigation appropriate in the circumstances.
“By having an investigation into workplace harassment and potential violations of its Workplace Civility and Respect Policy conducted by a lawyer with whom it was or would reasonably be perceived to have been in a solicitor-client relationship, the university failed to meet its obligations,” Hart declared.
He did not order any specific remedies beyond these declarations but remained seized to address potential impacts on J.M. pending the outcome of his investigation.
For more information, see Toronto Metropolitan Faculty Association v Toronto Metropolitan University, 2024 CanLII 109523 (ON LA).
