Conducting Regulatory Investigations 

WEDNESDAY, NOVEMBER 25th, 2009

9:00am - Announcements and Introductory Remarks

An Introduction to Regulatory Investigations
Kelley McKinnon
Partner, Gowling Lafleur Henderson LLP (Formerly Deputy Director, Enforcement & Chief Litigation Counsel Ontario Securities Commission)

• The principles of natural justice as they apply to administrative investigations
  - the role of administrative investigators, and how
  - the legal context may differ from that of police investigators
  - how the investigative role differs from decision making (tribunal) functions
  - how investigations differ from inspection and audits
• Understanding the scope of your statutory authority
  - can individuals be compelled to cooperate with the investigation?
  - authority of some regulatory agencies under the Public Inquiries Act
  - can you compel production of documents?
  - search warrants
• The balance between duties owed to individuals and duties owed to the public interest
  - advocacy vs. investigation: are you investigating on behalf of a complainant?
• The content of procedural fairness in different contexts
  - where to find standards that apply to your particular organization
  - quasi-criminal vs. other contexts
  - what makes an investigation balanced?
  - exercising your organization’s powers in good faith: what does it mean?
  - examples from case law
  - documenting your compliance with the requirements of procedural fairness
• Ethical considerations in structuring investigations
  - avoiding conflict of interest
  - preventing the perception of bias
  - heading off a cozy relationship between the regulated industry and long-time investigators
• The role of the Charter
  - does the right to counsel apply to administrative investigations?
• The consequences of flawed investigations
  - when has a flawed investigation led to a successful judicial review?
  - personal risks of exceeding your statutory authority
  - the current status of civil liability for negligent investigations
  - what if any statutory protection do investigators have against lawsuits from disgruntled targets?
  - limits on that protection

Understanding the Proper Uses of Investigative Information
Brian Gover
Partner, Stockwoods LLP (Former Commission Counsel, Walkerton Inquiry)

• The limits on collateral uses of information gathered in an investigation
  - what rights do witnesses have in the evidence provided?
• What if there are or may be concurrent criminal or civil proceedings arising from the same events?
  - should the investigation wait until criminal proceedings are complete?
• - important decisions from the Supreme Court of Canada
  - what “Chinese walls” apply?
• Can an investigator make use of evidence or findings from other proceedings?
  - does the Wagg principle apply in professional disciplinary proceedings?
  - recent case law developments
• How much disclosure is required at the investigation stage, and to whom?
  - how much information about the allegations is the target of an investigation entitled to receive?
  - if the investigation arises from a complaint, does the target of the investigation get a copy?
  - if the target knows the allegations, is he or she entitled to the underlying evidence such as documents?
  - who decides what’s relevant?
  - how understanding disclosure obligations informs the investigation
  - is a complainant entitled to information about previous complaints against the same respondent?

Planning and Preparing for the Investigation
Stephen K. Mcintyre, CFE
President, MG Forensic Accounting & Investigations Inc.

• Are there any policies or regulations prescribing the manner of the investigation?
• Preparing an investigation plan
• Useful forms and templates
• Checklists
• Who should conduct the investigation?
• Delimiting the scope of the investigation
• Identifying the issues
  - who decides what the issues are?
  - focusing what may be a rambling complaint
  - eliminating interesting or sympathetic issues that are not relevant
  - your organization’s jurisdiction
  - the dangers of framing issues too broadly
  - avoiding “issue creep”
  - keeping it relevant
• Figuring out what you need to prove on each issue
  - identifying the relevant legislation and policy
  - what evidence is required to prove those elements?
• Identifying the individuals and organizations who have the evidence you will need
• Investigative strategies
• Setting time frames and deadlines
  - allowing adequate time for a fair investigation
  - are there cases where deadlines may not be appropriate?

The Nuts and Bolts of Conducting an Investigation
Tom McNamara
Investigator, College of Physicians & Surgeons of Ontario
Jake Poranganel
Investigator, College of Physicians & Surgeons of Ontario

• Parts of the investigation
  - what constitutes a complete investigation?
  - where do you start?
• How does the procedure for administrative investigations differ from police investigations?
  - which skills are transferable?
  - which skills should investigators with police training rethink?
  - powers given to some administrative organizations that are not available to police forces
• What is good evidence?
  - does your organization accept hearsay?
• Observation skills
• Maintaining focus
  - the risks of sympathy for a complainant
• Locating that hard-to-find witness
• Getting access to documents
  - financial institutions
  - persuasion/negotiation vs. coercion
  - the status of the federal bill on lawful access
• Privacy and confidentiality considerations
  - duties to third-party witnesses
  - video surveillance: recent case law
• An introduction to file protocol
• What forms of evidence are allowable and not allowable?
• Keeping track of evidence
  - document handling and retrieval
  - logging evidence
  - protecting the integrity of evidence
  - chain of custody and security
• The relationship between custody and disclosure
• How much investigation is enough?
• Managing expectations
  - of the complainant if any
  - of the organization or individual being investigated
• The role of counsel in advising investigators
  - during the investigation
  - “post mortems” after the matter has been disposed of
  - working effectively with counsel
• Quality control
  - who is accountable for ensuring the investigation conforms with the legislation, policy and principles of natural justice?
  - how organizations can monitor compliance with their standards for investigations, including timeliness
  - tracking the progress of the investigation
• Wrapping up your investigation

Improving Your Interviewing Skills
Dean Benard
Benard + Associates, Waterloo

In this session, an experienced investigator will share inside tips on effective interviewing — including video clips of the right and wrong way to do it.

• The four elements of every interview
• Planning the interview
  - in what order should you interview subjects?
  - knowing and understanding the goals of the interview
  - designing appropriate questions to suit your needs
  - considerations such as location, using the telephone and audio or video taping
• Are witnesses entitled to have someone else present during interviews?
  - union representatives in an employment context
  - counsel
  - dealing with the witness’s support person: lawyer, union rep etc.
• What interview subjects have in common
  - how having insight into interviewees generally can help you
• Communication styles
  - the “self factor”
  - non-verbal communication
  - helpful communication techniques
• Interviewing techniques
  - establishing rapport with subjects and minimizing teir anxiety
  - gaining the subject’s cooperation
  - using effective communication skills in the interview
  - appropriate ways to assist a subject with recall
  - avoiding over-reliance on a script
  - helpful dos and don’ts
• Techniques for note taking
  - when should you take handwritten notes, use audio tape or use videotape?
  - use of teams
  - transcribing notes
• Proper techniques for taking witness statements
• Interviewing the more challenging subject
  - alleged victims
  - the overzealous interviewee
  - the reluctant/uncooperative interviewee

THURSDAY, NOVEMBER 26, 2009

Analyzing the Information You Have Collected
Don Enns
A/Manager, Regional Operations, Ontario, Transportation Safety Board of Canada

• Analyzing documentary evidence
  - organizational tips for cases with large volumes of documents
  - types of forensic analysis related to documents
• Analyzing witness evidence
  - witness/suspect statements
  - detecting deception
• Overview of data analysis and reporting tools
  Using computer forensic examination tools
• Analyzing other types of evidence and the information they provide
  What is relevant and important, and what is not?
• Testing the evidence against the burden of proof
• Case examples

Effective Report Writing
Laura Pettigrew
Senior Counsel, Office of the Ombudsman, Ontario

• Who are the audiences for your report?
  - should the complainant if any get a copy?
  - how will that affect your style and approach?
  - who gets to respond?
• Ensuring that your report is useful to the reader
• Style tips and appropriate use of language
• Parts of a report
  - creating an outline
  - what information should be included and what should be omitted?
  - tips for concise yet thorough writing
  - should some material be in appendices?
  - long reports: should they have an executive summary?
• Making compelling recommendations
• Avoiding common mistakes in report writing
• Use of debriefing documents after the fact, for internal use

Investigating Systemic Problems
Kwame Addo
Director of Investigations and Conflict Resolution, Office of the Ombudsman, City of Toronto

Some organizations have a mandate to investigate not only individual complaints but concerns about systemic problems. Whether it’s systemic racism, management of mentally ill inmates in a correctional system or some other type of problem, these types of investigations present different challenges from the usual single complaint model. In this session, the presenter will discuss these differences and outline best practices to follow.

• Distinguishing systemic from system-wide investigations
• Pros and cons
  - what are the advantages of a systemic investigation?
  - what are the problems with conducting systemic investigations?
• Selecting which cases merit a systemic investigation
  - identifying issues
  - case assessment
  - allocating limited resources
• Planning systemic investigations
• - what are the differences from planning regular investigations?
  - devising an investigative strategy
  - defining the scope of the investigation
• Executing the investigation
• Other considerations

Practical Exercises
Linda Fuerst
Partner, Lenczner Slaght Royce Smith Griffin LLP (Formerly Senior Investigation Counsel Ontario Securities Commission)
Alan Stewart, CA•IFA
Managing Director, Investigations, Navigant Consulting Inc.

In the final afternoon of the course, participants will take part in practical exercises that will reinforce what they have learned about planning investigations and interviewing skills.