Conducting an Investigation: a step by step guide

Analyzing, Reporting, and Ensuring You

Consider Procedural Fairness

Objective Criteria

24(1) of The Ombudsman and Children’s Advocate Act (SK)

Where, after making an investigation under this Act, the Ombudsman is of the opinion:(a) that a decision, recommendation, act or omission that is the subject matter of the investigation appears to have been:

(i) contrary to law;(ii) unreasonable, unjust, oppressive, improperly

discriminatory or was in accordance with a rule of law, a provision of an Act, or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory;

(iii) based in whole or in part on a mistake of law or fact; or

(iv) wrong;

Objective criteria

Contrary to Law• A decision will be contrary

to law if it is:– Contrary to a statute or

common law;– Undertaken without legal

authority;– A violation of the principles

of administrative fairness or other legal principles; or

– A failure to comply with the findings or order of a court or tribunal

Wrong• A decision is wrong if:

– It is based on an incorrect interpretation of the facts;

– It is illogical and contradicts or departs from policy, process or procedure which sets out the ‘right’ way;

– It is wrong for either moral reasons or because it is illogical; and/or

– The investigation uncovers new facts previously unknown, which now casts doubt about the correctness of the previous actions and decision.

Procedural Fairness

Individuals about whom a decision is being made should be notified in a reasonable manner that:

a) a decision is going to be made before it is made; and

b) the basis being used to make that decision.

Reasonable Notification

Procedural Fairness

Following proper notification and before the decision is made, the affected individual should be provided with:

a) an opportunity to review the information being considered; and

b) an opportunity to provide the decision-maker with alternative or contrary information.

The Ability to Respond

Procedural Fairness

All relevant information should be fully and fairly considered by the decision-maker, and information that is irrelevant to the decision at hand should not be considered.

Consideration of Relevant Information

Procedural Fairness

All decisions should be open to review and be correctable.

Decisions should be Reviewable and Correctable

Procedural Fairness

Adequate reasons for the decision must be provided to the individual. At a minimum, reasons for a decision at all levels should include:a) a statement of the decision;

b) a summary of the information relied upon by the decision-maker;

c) an explanation of how any contradictions in the information were reconciled by the decision-maker; and

d) any other relevant reasons for making the decision.

Provision of Adequate Reasons

Procedural Fairness

The decision maker should be free of and be seen to be free of bias.

Free From Bias

Procedural Fairness

In addition to the minimal fair practices, additional procedures may be required for some decisions, taking into consideration the following:

a) The nature of the decision;b) The impact of the decision on the

individual or group affected;c) The rights created by law; andd) Legitimate expectations of the parties.

Additional Procedural Requirements

Fairness Triangle

Analyzing Information…

• Relevant• Reliable• How much weight to give the

information?

Assessing Reliability

• Internal Consistency• External Consistency• Opportunities for Knowledge• Observation, Recall and Articulation• Interest in the Outcome• Degree of Detail• Probability

Assessing Reliability

IS NOT ABOUT:

• Demeanor• Who the person is

Providing Fairness

Case Assessment and Issue Identification

• Unbiased Review• Consideration of Relevant Information• Meaningful Reasons• Access to Appeal/Review• Additional Requirements

Providing Fairness

Building an Investigative Plan• Unbiased Investigator• Notification of Issues and Information• Consideration of Relevant Information• Additional Requirements

Providing Fairness

Interviewing• Unbiased Investigator• Notification of Issues and Information• Opportunity to Respond• Consideration of Relevant Information• Additional Requirements

Providing Fairness

Gathering and Reviewing Information

• Unbiased Investigator• Notification of Issues and Information• Opportunity to Respond• Consideration of Relevant Information• Additional Requirements

Providing Fairness

Analyzing Information• Unbiased Investigator and Decision Maker• Consideration of Relevant Information• Meaningful Reasons• Access to Appeal/Review• Additional Requirements

Providing Fairness

Report Writing• Unbiased Investigator and Decision Maker• Consideration of Relevant Information• Meaningful Reasons• Access to Appeal/Review• Additional Requirements

Analyzing Information

Pitfalls• Lack of planning• Lack of objectivity by the investigator • Reliance on unproven assumptions• Failure to follow due process• Failure to obtain all of the relevant

evidence which is available

Analyzing Information

Pitfalls• Lack of resourcing and/or poor use of

resources• Shortcuts• Lack of leadership• Poor investigation documentation• Lack of training• Failure to consider the organisational culture

• Making unrealistic recommendations

Panel Discussion

Pitfalls and Lessons Learned