Federal Court Reaffirms the Importance of Procedural Fairness in Workplace Investigations
In Marentette v. Canada (Attorney General), 2024 FC 676, a Border Services Officer with the Canada Boarder Services Agency sought judicial review of an investigation report that found that the incidents which had occurred over a 25-year period rose to the level of workplace harassment, or violence.
The employer did not initiate an investigation for nearly a year. Investigators only interviewed four of the six supervisors involved, and the Applicant was not given the chance to respond to the supervisors’ accounts. Between August and November 2022, the Applicant was informed on three occasions that the investigation was complete. However, contrary to the employer’s own investigation policies, the Applicant was neither provided with the preliminary findings, nor given an opportunity to respond before the final report was issued.
The investigation concluded that the alleged incidents did not constitute workplace harassment, and the Notice of Occurrence was closed without further action.
The Applicant contested the procedural fairness of the investigation by filing a Notice of Application for judicial review with the Federal Court, arguing that he was denied the opportunity to respond to both the supervisors’ evidence and the preliminary findings.
The Federal Court largely agreed with the Applicant’s position, emphasizing that investigations into workplace harassment require a high degree of procedural fairness. The Applicant should have been granted a “reasonable opportunity” to respond to the evidence and the preliminary report, particularly since the employer’s internal policies explicitly outlined this process.
On these grounds, the Federal Court granted judicial review and ordered the matter to be redetermined with a new investigator.
Key Takeaways for Employers:
- This case underscores the critical importance of procedural fairness in workplace harassment investigations, particularly the right of the complainant to respond to opposing evidence.
- Employers must strictly follow their own internal investigation policies. If employers choose to include procedural steps beyond what the law requires, they must ensure that those steps are consistently followed.