On May 2, 2024, the Federal Court found that an investigation conducted into various allegations of workplace harassment and violence conducted by the Canadian Border Services Agency (“CBSA”) violated the principles of procedural fairness. As a result, the Court ordered a new investigation, using a different investigator.

In Marentette v. Canada (Attorney General), the Applicant, a Border Services Officer with the CBSA, sought judicial review of an investigation report after a nearly two year long investigative process concluded with a finding that none of the incidents which had occurred over a 25 year period met the definition of workplace harassment or violence.

The Investigation

In April 2021, the Applicant initiated the process by filing a Notice of Occurrence (“Notice”) pursuant to the Regulations with the National Integrity Centre (“NICE”) alleging seven incidents of workplace harassment and violence involving six supervisors that occurred between 1995 and 2020. These allegations included hate crimes, sexual harassment, discrimination, physical violence and derogatory name calling.

In May 2021, the Applicant confirmed that he wanted an investigation.  A Notice of Investigation was issued a month later, but no steps were taken to advance the investigation in the months that followed.  The Applicant followed up about the status of the investigation in November 2021, and filed a grievance in January 2022 because of the ongoing delay.

An investigator was not retained and appointed by the employer until April 2022, almost a full year after the original Notice had been filed.

The Applicant was not interviewed until May 6, 2022, and provided additional information approximately two weeks later. 

During the course of the investigation, the Investigator also interviewed four responding parties and spoke to one witness. Two of the responding parties were not interviewed, as one had retired and the other was on leave. Notably, the Applicant was never given a synopsis of the evidence provided by the responding parties or the witness, or a chance to respond to the evidence given by those individuals, nor was he given a copy of the Investigator’s Preliminary Report.

In August 2022, October 2022, and November 2022, the Applicant was told the investigation was complete, but it was not until January 2023 that the Applicant received an anonymized version of the investigator’s final report and was informed that the CBSA had adopted the report’s findings.

The investigator’s final report ultimately determined that none of the occurrences alleged by the Applicant constituted workplace harassment or violence. As a result, no preventative measures were recommended, and CBSA closed its file.

Judicial Review

The Applicant filed an Application for judicial review on the grounds that the investigation lacked procedural fairness. The Applicant argued that he was denied procedural fairness because he was denied both the right to know and respond to (1) the positions advanced by the responding individuals and the witness interviewed by the Investigator, and (2) the investigators’s preliminary findings.

Ultimately, the Court agreed and ordered the CBSA to conduct a new workplace investigation, using a different investigator. Relying on longstanding jurisprudence, the Court held that workplace harassment and violence investigations are afforded a high level of procedural fairness. The employee has the right to know the case it has to meet and must be given a “reasonable opportunity” to respond to unfavourable, inaccurate, prejudicial, and contradictory statements arising out of the workplace investigation.  The Court found that the CBSA failed in both regards.

Additionally, the Applicant was denied his procedural rights according to the CBSA’s “Workplace Harassment and Violence Prevention Regulations Checklist”. The Checklist lists the following as part of the investigation process, none of which took place:

• Provide a copy of the investigator’s preliminary report to the principal party.
• Provide a copy of the investigator’s preliminary report to the responding party.
• Obtain comments from the principal party and responding party and send to investigator.

These additional shortcomings led the Court to find that the investigation as a whole was “fundamentally flawed”, and referred the matter back to the CBSA for a new investigation involving a different investigator.

Takeaways

This case highlights the importance of ensuring workplace investigations are conducted in a manner which affords employees procedural fairness. Among other things, employers must ensure that:

• The investigation is conducted in a timely and relatively transparent manner;
• Procedures established by any applicable regulatory and/or policy requirements are followed;
• The complainant is kept up to date as the investigation process unfolds; and
• The ‘right to respond’ is respected, giving both the complainant and the respondent(s) a reasonable opportunity to respond to any evidence gathered throughout the course of the investigation.

Denying procedural fairness during a workplace investigation runs the risk of a fundamentally flawed investigation.  This can lead to legal liabilities on the part of the employer and could, in some cases, result in the employer being ordered to conduct an entirely new investigation, which can be both time consuming and costly, as well as disruptive to the employer’s operations.

The author gratefully acknowledges the assistance of Amanda Finelli, an Articling Student in the firm’s Toronto office.

If you have any questions about this topic, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.