🏠 Home – Index to Contents ›
Workplace Investigations ›
Duty to Investigate: Federal Court on Procedural Fairness – Canada Labour Code

Duty to Investigate: Federal Court on Procedural Fairness – Canada Labour Code

A recent Federal Court decision considered the issue of procedural fairness in the investigative process dealing with a complaint made under the Federal Work Place Harassment and Violence Prevention Regulations. These regulations were passed pursuant to the Canada Labour Code. ¹

The case involved complaints made by the employee against the Canada Border Services Agency, alleging various forms of adverse treatment alleging that he was a victim of hate crimes, discrimination, physical assaults and other derogatory conduct from his immediate superiors. The initial report of the investigator concluded that none of these events had amounted to workplace harassment or violence under the employer’s guidelines and dismissed the complaint.

The employee successfully sought judicial review of this outcome. The Federal Court viewed the process as being “fundamentally flawed” and ordered that a new investigation be undertaken by a second investigator. ²

The decision focused on the defects in the investigative process. The most significant of such failings was the failure of the investigator to allow the employee to review and be given the right to respond to the contradictory evidence obtained by the investigator. The Court also found that the employee should have received a copy of the preliminary report as this was required by the employer’s policy.

The Court also found that the investigator’s finding that none of the events, examined distinctively, failed to meet the standard of wrongdoing under the Regulations and in so doing, had failed to consider the cumulative impact of such allegations.

It was noted that questions of procedural fairness are reviewed on the standard of correctness. Investigations of this nature dealing with workplace harassment and violence, the Court concluded, are to be given a high level of procedural fairness. This was also buttressed by the argument that the Regulations are remedial in nature.

The case was one using a statutory process which will distinguish it from the usual workplace investigation. Nonetheless, the principles may well be welcomed by civil courts to define the standard of fairness to be afforded to a person subjected to such an investigative process.

1. to paragraph 125(1)(z.16)
2. Martenette v Canada