Statutory Governance
Extraordinary caution should be taken when dealing with a situation in which the employer is exercising a function under a public statute which governs the employer. A good example of this is the case below dealing with a high school principal in Saskatchewan.
The 2021 Saskatchewan Court of Appeal decision reviewed this question of the fairness of the investigation process by an employer in the exercise of such a statutory function. 1
The plaintiff was a high school principal employed by the Board of Education. He had also volunteered to coach assorted school sports teams, including the senior girls’ volleyball team. His daughter was a participant on this team.
On the occasion in issue, Oberg had an altercation with the female head coach, who was a community volunteer, with respect a decision made concerning Oberg’s daughter’s involvement in the game. A parent, witnessing this event, reported the matter to the Board. This led to an investigation which, in turn, caused the Board to demote Oberg from his position of principal to a teacher’s role.
Oberg took legal action against the Board to set aside the demotion based on a lack of procedural fairness in the manner of investigation. The Chambers judge on this application agreed with his submission and reinstated Oberg to the position of principal. The Board then appealed unsuccessfully to the Court of Appeal.
The Chambers Decision
The reasons of the Chambers judge considered the balancing interests of the efficiency of the investigative process and the duty of procedural fairness. The Board was a creature of statute, governed by the Education Act of Saskatchewan. This is an important distinction between these facts and the usual investigative process. Also, this fact engaged the 1999 Supreme Court of Canada decision in Baker v Canada.
McCreary, J., the Chambers justice, considered and applied Baker and concluded that the employer owed the plaintiff a “high degree of procedural fairness” and natural justice through the investigative process. This duty, she found, had been violated in three fundamental ways, namely:
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The Board failed to provide the plaintiff particulars of allegations made against him during the investigation;
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The Board failed to allow Ogden a fair opportunity to reply to the assertions made against him during the investigation; and
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The Board failed to provide reasons for its decision.
The Court found that Ogden was owed such a high degree of procedural fairness for several reasons, given that the decision maker was a public body created by statute, and citing the Supreme Court decision on Baker v Canada:
(a) The nature of the decision and the process used to make it. The more the process provides for a decision resembling judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required;
(b) The nature of the statutory scheme and the terms of the statute under which the body operates. Greater procedural protections are required when no appeal procedure is provided in the statute or when the decision will finally determine the issue;
(c) The importance of the decision to the individual affected. The greater the impact on the lives of those it affects, the more stringent the procedural protections;
(d) The legitimate expectations for procedural fairness of the person challenging the decision, which is often informed by any policy the public body has in place respecting processes for decision-making; and
(e) The choices of procedure made by the body itself, particularly when the statute gives the decision-maker the ability to choose its own procedures, or when the body has expertise in determining what procedures are appropriate.
Also, the Court noted that the internal Saskatchewan Board Association investigation manual suggested that a high standard of procedural fairness would be used with respect to decisions impacting an employee’s employment contract, stating:
The investigation manual expressly speaks to the principles of natural justice including: (1) the right to know what the accusations are; (2) the right to representation; (3) the right to respond to the allegations; and (4) the right to know the reasons for the decision. These four principles are cornerstones of procedural fairness. The fact that these policies have been adopted by the Board create a legitimate expectation that they will be employed.
Further, the Chambers decision observed that the decision in question had a significant impact on the plaintiff’s life. This “necessitates a high standard of justice and fairness”.
The remedy allowed was that the Board’s decision to demote was quashed. Significantly, the court did not remit the matter back to the Board for reconsideration. Oberg effectively was reinstated to his position as principal. The Court spoke to this issue of remedy:
If I had found only that the Board breached its duty of procedural fairness in coming to its Decisions, I would remit the matter back to the Board for reconsideration. However, I have also found that Mr. Oberg’s demotion does not fall within a range of reasonable alternative outcomes.
Saskatchewan Court of Appeal
The Court of Appeal upheld the initial decision, agreeing with the conclusion that the investigation was not procedurally fair and had correctly found that the Board had violated its duty of procedural fairness.
The principle, so to speak, is an important one. Had Oberg been terminated or suffered a loss of income, this would have exposed the Board to a continuum of an income loss until the date of reinstatement. This is a very important consequence of an investigation gone wrong. This situation may have been avoided so easily by a fair and unbiased investigation.
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