How do you make findings and write the investigation report?

The standard of proof is where most HR content goes wrong, so start there.

There is only one civil standard: the balance of probabilities. In F.H. v. McDougall, 2008 SCC 53, the Supreme Court of Canada held, in Rothstein J.’s words, “once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities” (para. 40). The question is simply whether it is more likely than not that the alleged conduct occurred. The Court expressly rejected any heightened or sliding standard for serious allegations: the seriousness of the allegation and the seriousness of the consequences “do not change the standard of proof.” The criminal “beyond a reasonable doubt” standard, and the framework from R. v. W.(D.), have no place in civil or workplace fact-finding, because there is no presumption of innocence in the civil context.

Kill the myth. The single most common error in workplace investigations is importing a criminal standard — or a “higher bar for serious misconduct” — into the analysis. There is no such bar. McDougall did preserve one nuance: while the standard never changes, evidence must always be scrutinized with care and must be “sufficiently clear, convincing and cogent” to satisfy the balance-of-probabilities test. That is a statement about the quality of evidence, not a higher standard. An investigator who writes “the allegation is so serious I would need near-certainty” has made a legal error. The AWI Guiding Principles align: in most workplace investigations “the preponderance of the evidence” standard applies — whether, after weighing all the evidence, it is more likely than not that the alleged wrongdoing occurred.

Findings of fact vs. legal conclusions, and the investigator/employer line. The investigator finds facts — what, on the balance of probabilities, happened — and, where the mandate asks, whether those facts breached a workplace policy. The investigator does not pronounce legal liability (e.g., declaring conduct “constituted unlawful discrimination” as a legal verdict) and ordinarily does not set discipline. As HRcertification.com’s report-writing guide puts it: “It’s a Recommendation, Not a Mandate: Remember that your role is to recommend. The final decision on discipline rests with management.” The Canadian Human Rights Commission’s flow makes the split explicit: the investigator prepares a report and may make recommendations, but “the employer is responsible for implementing” them, and the CHRC cautions investigators to “refrain from recommending specific disciplinary measures,” particularly when they do not know a party’s full disciplinary history. Whether an investigator offers recommendations at all is a function of the mandate — some are retained to find facts only, some to also determine policy breach, and rarely to reach a legal conclusion. Keep findings (what happened) strictly separate from any recommendations (what should happen next). The discipline decision itself belongs to the progressive-discipline note.

Substantiated / unsubstantiated — and avoid “inconclusive.” Findings on each allegation are usually expressed as substantiated, partly substantiated, or not substantiated. Note the distinction the report templates draw: the underlying facts may be true, yet the allegation of wrongdoing unsubstantiated (e.g., the conduct happened but did not breach policy). Because the standard is “more likely than not,” investigators should reach a finding rather than defaulting to “inconclusive” — even in a “he said / she said” case, the evidence must be weighed and a determination made.

Report structure. The AWI Guiding Principles state that, at minimum, a report should set out the investigation process, what evidence was gathered, the findings, and the reasons for the findings. A standard written report contains: (1) the mandate/scope and the allegations; (2) the investigation process (who was interviewed, documents reviewed); (3) the evidence relied on; (4) the applicable policies and the evidentiary standard used; (5) the analysis — including credibility assessments with reasons; and (6) the findings on each allegation. Write in neutral, third-person, fact-based language; show your reasoning, because a report that recites statements and then declares “substantiated” without explaining how the evidence was weighed is not defensible.

For an Ontario SMB, remember that the “results” you must communicate to the parties are a summary, not the full report (covered in the after-the-investigation note) — and that a written report may attract or waive privilege depending on why it was created, so decide the report format and privilege strategy with counsel at the outset, not after. This is general information, not legal advice.