Procedural Fairness in Investigations: Marentette v Canada (AG)
Workplace investigations, while necessary, can profoundly impact the work environment, work culture, and psychological well-being of those involved. When investigating workplace complaints, it is essential to follow a fair procedure. In legalese, this is referred to as “procedural fairness”. A recent Federal Court case, Marentette v Canada (AG), shed light on the importance of procedural fairness in workplace investigations. In this post, we summarize this case and its implications for the law and workplaces.
Understanding the Facts
In short, a Border Services Officer filed a complaint under the Workplace Harassment and Violence Prevention Regulations, citing multiple instances of workplace harassment and violence. An investigation was conducted, and the complaints were ultimately dismissed. However, the investigative process leading to this decision raised significant procedural fairness concerns. Notably, the employer had outlined a set of procedural steps to be followed during the investigation, which were not adhered to by the investigator. This non-compliance formed the basis of the appeal, alleging a breach of procedural fairness in the workplace investigation and its findings.
Judicial Review Granted
Procedural fairness was reviewed using the correctness standard by analyzing whether the decision-maker made the correct assessment in line with legal principles. The main question considered by the Court was whether the applicant had a full and fair chance to respond throughout the investigation process. Garnering proper responses is a requirement of the workplace investigations process, no matter how much deference is accorded to the decision maker (Canadian Pacific Railway Company v Canada (Attorney General) at para 56); a requirement that was not maintained in this instance. Additionally, given the severity of the allegations of harassment, an even higher threshold of participation is required. On these grounds, the Federal Court granted judicial review and ordered the matter to be redetermined with a new investigator.
Workplace Investigations after Marentette v Canada (AG)
The Federal Court has clearly pronounced that workplace investigators must grant all parties reasonable opportunities to respond and refute all allegations. Additionally, to safeguard against litigation and breaching the principles of procedure fairness, it is essential to follow a thorough, impartial, and mandated process in conducting workplace investigations. Contact one of our workplace investigators at Turnpenney Milne LLP for further information on the implications of this case or to assist with your investigation needs.
Written by: Alexa Saleski