Alberta’s Underregulated Investigations Industry
Hazards Employers Need to Know
Significant revisions to the Alberta Occupational Health and Safety Act in 2018 made it obligatory for employers to investigate certain types of complaints. Licencing requirements under the Alberta Security Services and Investigators Act of 2010 have since been ignored by many self-proclaimed “workplace investigators”.
Legislation
In 2010, the Security Services and Investigators Act of Alberta was enacted to introduce a new licencing regime to the provincial investigation services industry. According to the Province, “…the Act was designed to ensure minimum standards of training, accountability, and professionalism…to protect the public interest.”[1] At the outset, lawyers were exempted from licencing requirements as were regulatory bodies with their own specific legislation addressing investigations.
Then, in June 2018, harassment (including bullying) was recognized as a hazard under the Occupational Health and Safety Act of Alberta. With that, investigation of harassment allegations became a statutory requirement and individuals of all stripes held themselves out as investigators in the public realm (including lawyers, mediators, human resources personnel, and retired law enforcement officers to name a few). Ever since, botched and biased investigations by unqualified individuals are causing further problems and harm.
Licencing Requirements
The current requirements to obtain respective Business and Individual Investigator Licences to offer services to the public in Alberta are minimal. To begin with, directors, officers, and owners of Contract Businesses, as well as individuals, must undergo a Police Information Check. Businesses further need to submit proof of insurance and an approved code of conduct policy while individuals must show evidence of a minimum level of training as ascribed by the Province. A two-year licence for a Business now costs $1,000 while an Individual Licence is priced at $160. Our firm more than recovers these licencing costs in lower premiums as a result of disclosing our licenced status in our insurance policy declarations. In short, licencing is a value-add to our business.
Limitations to Investigations by the Unlicenced
So, why then, are many businesses and individuals in Alberta holding themselves out as investigators while not being licenced? As it turns out, many are relying on an exemption that allows for those engaged by an employer to do internal workplace investigations. Relying on this exemption comes with an important caveat from the Province, however. Unlicenced firms and investigators can only engage with current employees and contractors in the course of an investigation. They cannot engage with former employees, former contractors, shareholders or citizens nor can they collect any information and evidence from outside sources.
Given that any investigation may, and many do, have key external parties and sources, at the outset of an engagement, unlicenced firms and individuals are left with the decision to either ignore any potential external sources of information/evidence or to breach the provincial statute. In the former, such inaction may be considered willful negligence while, in the latter, breaking the law.
Risks of the Unlicenced
Whatever enforcement action the Province may or may not take with respect to an unlicenced firm or individual in such circumstances, one has to wonder if insurers would void the policies of unlicenced businesses and individuals where external sources were ignored or the statute breached. This would pose a significant legal and financial exposure to the unlicenced firm or individual (and perhaps their client as well) where a lawsuit is launched pursuant to the investigation.
Another scenario is perhaps even more troubling. What would happen if an unlicenced investigator (having no requirement to complete a Police Information Check) was found to have a criminal record for sexual assault (for example) in the course of conducting a sexual harassment investigation? In such a case, it would be hard to imagine how those responsible for hiring the unlicenced investigator would be able to avoid significant legal, financial, and reputational damage. Where a victim of harassment or sexual misconduct was further traumatized by a convicted sexual predator tasked with investigating their complaint, would those responsible for engaging the unlicenced investigator be charged with criminal negligence (especially where the victim is further harmed or takes their own life due to the added betrayal)?
Conclusion
Investigations are risky. Utilize basic risk management practices before engaging any external investigator. In short, do your due diligence to ensure they have the required education, training, experience, background checks, licencing, and insurance.
Jeff Bzowey
Owner and Principal Consultant
Root Resolutions
rootresolutions.ca
[1] SSIA Policy Manual, pp. 1-2