Board of Governors Investigation

On February 8, 2021, TRU’s Board of Governors received correspondence containing notice of allegations of misconduct against two senior administrators, including a request to investigate. The correspondence was from anonymous spokespersons claiming to represent at least 11 individuals who wished to bring forward complaints.

Upon receiving the anonymous correspondence, the board identified outside legal counsel who had not previously worked with TRU senior administrators and, on February 11, 2021, retained that counsel to support it. A sub-committee of the board identified and hired two independent investigators who had not previously worked for TRU to conduct the investigation, including one who was Indigenous. One of the investigators was replaced in June 2022 after being appointed as a provincial court judge.

Investigators were instructed to investigate complaints connected to the correspondence received by the board on February 8, 2021. Investigators developed Terms of Reference outlining their process for conducting the investigation. Complainants had some input into the Terms of Reference, which were finalized in August 2021 and can be found here.

The anonymous representatives made it clear from the outset they would not bring their concerns forward without specific assurances. The board was guided by its Whistle Blower Policy under which the investigators reported solely to a committee of the board rather than to TRU administrators. As noted by the investigators in the Executive Summary of their report:

“The process and Terms of Reference were determined by the investigators in their independent discretion and approved by counsel for TRU as to scope on or about August 12, 2021. The Terms of Reference were provided to the complainants on August 13, 2021, and to the respondents on November 19, 2021.”

The investigators acted independently, and the board was not advised of the identity of the complainants or what the complaints were until the investigators submitted their report on December 21, 2022.

No, TRU senior administrators were not involved in the process. Representatives for the complainants provided input on who the investigators would be, as well as the Terms of Reference.

Eight individuals brought forward a total of 55 allegations – 22 against one administrator and 33 against the other. Investigators indicated allegations varied from serious to less serious comments and/or conduct.

Seven of the complainants are former employees and one is a current employee.

Investigators concluded that 10 allegations made by four complainants were substantiated. Seven of those allegations centred around inappropriate comments amounting to sexual harassment against women in the workplace or in social settings. One other allegation was deemed harassment targeting a particular age group, another involved a comment derogatory to Indigenous people, and another was personal harassment.

Altogether, 45 of the 55 allegations were not substantiated. This included four instances when investigators made no finding because the matter had been previously reviewed, the allegations (in two instances) were too general to be investigated, or the parties could not provide information to allow the allegation to be investigated.

All 22 allegations against one of the respondents were not substantiated.

As noted by investigators in the investigation executive summary, their mandate was to consider, based on evidence gathered, whether on the balance of probabilities, specific events reported by complainants occurred, and whether any of the actions or events that did occur constituted a breach of applicable policy and/or legislation.

Complaints were reviewed against a legal framework guided by human rights tribunals, courts, and relevant statutes, including: the Human Rights Code and the Workers Compensation Act, common law principles, and applicable TRU policies. Investigators also considered the United Nations Declaration on the Rights of Indigenous Peoples.

Investigators assessed the credibility of individuals (whether witnesses, complainants or respondents) in making their determinations.

The investigators made it clear in the report their roles were as neutral, independent third parties fulfilling a fact-finding mandate. They strived to maintain a balance of conducting a procedurally fair and thorough process that was also trauma informed.

Within that balance, however, the investigators noted that based on current law and legal principles in Canada, the complainant is the party that carries the burden of proving, on a balance of probabilities, that the respondent(s) engaged in misconduct that has been alleged.

TRU believes it is important that all complaints are taken seriously and reviewed. Substantiated complaints must be supported by evidence. A fair and thorough investigation process is the best way to assess the validity of complaints.

In this case, as outlined in the executive summary, investigators took great care in how they conducted interviews, how they asked questions, and offered those interviewed the opportunity to have a support person present during interviews and take breaks as needed.

The investigators’ mandate was to determine whether allegations were true, and if they were, did the alleged behaviour violate any law or TRU policy.

When the board investigation became public through media coverage in November 2021, individuals separate from the eight complainants came forward wanting to participate in the board-initiated process either as complainants or witnesses. This created concerns about the scope of the process and fairness to the parties, particularly the respondents. As such, the board decided to keep the scope of the investigation to its original purpose, which was to examine concerns stemming directly from the February 2021 email sent to the board. It was determined any other complaints would be referred to TRU’s existing complaint processes. TRU publicized these options to employees and encouraged individuals to bring concerns forward.

There was an initial period of six months during which the board sub-committee identified external counsel and independent investigators that had not previously work for TRU, and during which those investigators worked with representatives of the complainants to develop the Terms of Reference for the investigation. In the fall of 2021, investigators then began the work of contacting complainants, gathering information and conducting interviews.

In addition to meeting with complainants and respondents, investigators interviewed 34 witnesses, some on multiple occasions. Investigators also approached other individuals to be interviewed, but some either did not respond, declined to be interviewed, or were unable to be found.

This culminated in a written report as submitted Dec 21, 2022, of well over 500 pages.

As an employer and public body, TRU is required by both employment and privacy law to protect private information of individuals. This means certain information in the workplace investigation report cannot be shared. Additionally, given the number of complainants and respondents involved, TRU needed to develop separate packages of information to go to each individual to ensure they were only receiving information that was specific to them, and not sharing information related to other complainants, or respondents. Additionally, witness information also required protection, per privacy laws.

To understand TRU’s obligation, please refer to Section 22 of BC’s Freedom of Information and Protection of Privacy Act.

In accordance with privacy laws, unredacted information is only available to a strictly limited number of people who need that information to carry out their respective duties related to the investigation and findings.

As a public body, TRU is obligated by law to protect private information, which includes the type of information about people that would be contained in a workplace investigation as the one undertaken through the Board of Governors. This respects the privacy of individuals who have provided information, individuals who have been named but were not involved, or those who are impacted by the allegations.

TRU has considered what it is able to share within the bounds of these legal requirements and has released a redacted version of the investigation report’s executive summary and a redacted version of the full report as provided by external legal counsel. Such redaction is required under the Freedom of Information and Protection of Privacy Act.

To understand TRU’s obligation, please refer to Section 22 of BC’s Freedom of Information and Protection of Privacy Act.

TRU’s president is responsible for making such decisions. Given that these are private matters of employment law, TRU will not be providing information on actions that may be taken.

There is more the university can do to inform and assure employees of the avenues in place to bring forward concerns. TRU has, for some time, had multiple ways for employees to share concerns or complaints, but we concluded that we need to make employees more aware of those avenues for bringing concerns forward. Also, TRU has developed a better understanding in recent years of what it means to have trauma-informed processes. Employees need to be assured that they can come forward in settings that are safe and supportive to speak to investigators from outside TRU. Additionally, it’s important to understand an employer cannot act against any individual without a proper investigation which does require the confidential participation of complainants and respondents.

TRU has put in place multiple channels through which employees can bring forward complaints or concerns about the conduct of others. Outside of the People and Culture department , employees can also take concerns forward in the following ways:

• all forms of harassment to the university’s Human Rights Officer who is outside legal counsel retained for these matters;
• confidential complaints by faculty, staff and students related to sexualized violence to the Sexualized Violence Prevention and Response office;
• the Board of Governors Whistle Blower Policy, which guided the recent investigation.

Through these channels employees access trauma-informed conversations with outside investigators and are protected from retaliation or reprisal for doing so. TRU has strengthened and publicized these channels and will continue to do so in future. In addition, TRU has initiated a conversation with and among employees regarding how we ensure a values-driven workplace culture. This initiative will provide safe spaces for employees to discuss concerns that are not related to specific individuals but rather are about how to improve policies, procedures, interactions, and behaviours in the workplace.

Sexual harassment has been defined by the Supreme Court of Canada as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment”.

Discrimination is adverse or negative treatment based on the protected grounds of race, religious beliefs, gender, gender identity, physical or mental disability, age, place of origin, marital or family status.

Investigations occur in workplaces across the country to address issues that may arise. Such investigations are confidential. What made this situation different was the profile and public attention generated as individuals contacted media. Given that this was a workplace investigation, not a public matter, the board and TRU’s president strictly limited public comment throughout the process to preserve the integrity of the investigation and ensure fairness for all involved.

Legally, employers have only a limited right to suspend employees with pay. Generally, an employer requires a compelling objective basis for removing an employee from the workplace during an investigation as well as some assurance the investigation will be completed relatively quickly. Failing that, such paid suspensions generally amount to wrongful dismissals.

In this case, given the independent nature of the investigation, neither the president nor Board of Governors were privy to the details of complaints to be able to make such a determination.

The university has paid the investigators $1.02 million.

The investigation was focused solely on addressing allegations stemming from the initial email sent to the Board of Governors in February 2021.

Investigators have made it clear in their executive summary that their process and report are not an audit of TRU’s culture; rather, their work was to assess specific allegations made against respondents and determine whether those allegations were substantiated based on the evidence. TRU is undertaking a workplace culture initiative this year, in which employees are encouraged to participate.

The investigators’ mandate “. . . was to consider, based on the evidence gathered in the investigation, whether on the balance of probabilities, the specific events reported by the complainants occurred and whether any of the actions or events that did occur constitute a breach of applicable policy and/or the below referenced legislation.” (see: redacted executive summary, page 3, paragraph 10). It was through this that investigators determined whether allegations were substantiated. In other terms, a substantiated complaint is one that has been established by evidence to the necessary standard of proof, which, in this case, was a civil standard. The civil standard requires that a claim be established on a “balance of probabilities,” which means it is more likely than not to have occurred. By contrast, an unsubstantiated complaint is one which has not been established as being more probable than not on the basis of the evidence.