Investigating the Investigators – Allegations of Discriminatory Bias against Workplace Investigators

It is well-established that, where an employee makes an allegation of discrimination within the meaning of the Ontario Human Rights Code [“the Code”], and where the alleged discrimination has a nexus with the employee’s employment, the employer has a duty under the Code to conduct an investigation.

The Ontario Human Rights Tribunal has characterized the duty to investigate as a “‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment.”[1] Importantly, the employer also a duty to ensure that the investigation process is itself free of discriminatory bias. The Tribunal’s recent decision in Cybulsky v Hamilton Health Sciences, 2021 HRTO 13 [“Cybulsky”] concerns this second duty.

The applicant, Dr. Cybulsky, was one of the few woman cardiac surgeons in Canada. She spent her entire career, from 1985 to 2017, at Hamilton Health Sciences [“the hospital”]. In 2009, she was appointed Chief of Cardiac Surgery Services, becoming the first woman in Canada to lead a cardiac surgery department. At the time, she was the hospital’s only woman cardiac surgeon.

In January 2014, the overall Chief of Surgery, Dr. Reddy, ordered a review of the cardiac surgery division. The review was prompted by “grumblings” in the department, the nature of which has never been specified. There were no reviews of other departments, and it soon became clear that the review of the cardiac surgery services department was, in fact, a review of Dr. Cybulsky’s leadership. The review was conducted by Dr. Flageole, the Chief of Pediatric Surgery. She delivered her report to Dr. Reddy in May 2014.

It emerged in the report that a number of cardiac surgeons (all of whom were men) had complained of “bullying” by Dr. Cybulsky. When Dr. Cybulsky was informed by Dr. Reddy of these complaints, she noted that women in leadership positions are often accused of bullying. She had raised the same concern when interviewed by Dr. Flageole. She referred Dr. Reddy to the “very extensive literature” on the “challenges of a woman being a leader” and faulted the report for “completely [ignoring]” the gender dynamics in the cardiac surgery department (in her testimony before the Tribunal, Dr. Flageole would attribute this omission to the fact that “none of the individuals [interviewed] referred to Dr. Cybulsky’s gender. So it never came up”).

Dr. Cybulsky’s appointment as Chief of Cardiac Surgery Services had historically been renewed on an annual basis, without any solicitation of applications from other candidates. In September 2015, the new Chief of Surgery, Dr. Stacey, informed Dr. Cybulsky that he intended to solicit applications in advance of the 2016-17 term. He explained, citing the Flageole report, that he was looking for “someone with a different set of skills to take the group forward, who can bring the group together.” When Dr. Cybulsky objected, Dr. Stacey proposed a second review of the department. In response, Dr. Cybulsky expressed—for a third time—her view that the allegations against her were tainted by sexism. She also made it clear that she would regard a second review as harassment. The second review did not proceed, and Dr. Cybulsky did not apply for re-appointment. She ultimately resigned from the hospital in June 2017.

The Tribunal found that the hospital had breached Dr. Cybulsky’s rights under the Code on two occasions. Firstly, Dr. Cybulsky’s complaint regarding the content of the Flageole report should have been treated as an allegation of sex discrimination. The complaint triggered the hospital’s duty to investigate, and, in failing to investigate, the hospital breached the Code. Secondly, the decision to solicit applications was “tainted” by Dr. Stacey’s reliance on the Flageole report. Once Dr. Cybulsky triggered the hospital’s duty to investigate the report, the report should have been “set aside” until the investigation was complete.

Importantly, the Tribunal made no finding as to whether the Flageole report was, in fact, tainted by discriminatory bias. The Code creates procedural obligations as well as substantive obligations, and the hospital’s failure to investigate the Flageole report constituted a free-standing breach of the former. This failure was aggravated by the fact that Dr. Cybulsky raised the same concern about gender discrimination on three separate occasions—with Dr. Flageole, with Dr. Reddy, and with Dr. Stacey—and still no action was taken.

The takeaway for workplace investigators is that, when an allegation of discrimination is raised during an investigation, it must be pursued. The takeaway for employers is that, when an employee alleges that a report—of any kind—is in some way tainted by discriminatory bias, the report cannot be relied upon until the alleged discrimination has been properly addressed.

The Tribunal will hold a hearing on the question of remedies at a later date.

[1] Laskowska v Marineland Canada Inc, 2005 HRTO 30 at para 53.