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Failure to Investigate May Add to Damage Claim – City of Calgary Case

Failure to Investigate May Add to Damage Claim – City of Calgary Case

Employers who dismiss or discipline employees without conducting a fair investigation face real legal risk. Courts in Alberta have awarded aggravated, moral, and reputational damages where an employer failed to investigate allegations before acting. These awards often dwarf notice-period damages. This post reviews key Alberta decisions where skipping the investigation backfired — and explains how employers can avoid the same outcome.

Failure to Investigate May Cause Continuation of the Wrongdoing

A good example of this situation is found in the case of the City of Calgary v CUPE local 38. The failure to investigate was evidently influential in the assessment of the general damage award of $125,000 and, in fact, the total award of $800,000. In this instance the absence of a timely response from the employer clearly allowed for the harassment suffered by the female employee  to continue and, sadly, for the emotional trauma to be heightened.

This is reflective of the same motivator for prompt steps to investigate a complaint particularly of this nature, in which the conduct may be a continuum.

In this case the need to investigate came from a unique layer of forces mandating just that. This included not only human rights requirements, but also the collective agreement, health and safety legislation and the City’s Respectful Workplace Policy.

The Board found that rather than put into place these safeguards, there was no compliance whatsoever and that “the Griever was treated as a problem to be managed, as opposed to a victim to be supported”.

This decision noted that the very failure to implement these policies and start an effective investigation “contributed significantly to the ultimate state in which the Grievor finds herself”.

This context takes the failure to investigate to a new level of significance. It is not purely a matter of a flawed investigation coming to the incorrect or biased result. Now, the failure to investigate itself has exacerbated the very damage the process was intended to stop.

The failings of the process did include the following for further reference on what not to do:

1. The alleged abuser was left in charge of the work site;
2. The alleged victim was left in an unsafe environment when evidence had been presented of the wrongdoing, which was discounted;
3. When the complainant complained about steps to safeguard her personal safety, she was threatened with discipline for being disrespectful;
4. Given strong evidence to the contrary, the employer maintained a position of defending the grievance;

The endless refrain of the theme is poignantly obvious. A prompt and effective investigation would have greatly reduced the likelihood of the repetition of the offensive conduct, and thereby assured the plaintiff of the safe working environment to which she was entitled at law and in this case, minimized the damage which was suffered.

For a full legal overview, see Duty to Investigate in the Workplace