It need not always follow that an unfair investigation will lead to the conclusion that there was no cause for dismissal.

Topolniksi J. considered this argument in Foerderer v Nova Chemicals and concluded that the employer may nonetheless succeed in such a defence even when the investigation was inadequate:

[134]         In Leach^[35], Coutu J. thoroughly reviewed the law concerning entitlement, if any, of a private sector at‑risk employee to a “fair hearing.” As here, the plaintiff in Leach cited McIntyre v. Rogers Cable T.V. Ltd.^[36]  and Quirola v. Xerox Canada Inc.^[37] for the proposition that an inadequate investigation of an allegation of harassment thwarts cause for dismissal. In rejecting that argument, Coutu J. commented that she had not been provided with any direct authority for such proposition, but observed there was one study which concluded that there appears to be a  correlation between employer success at trial and the provision of an opportunity to respond to the allegations prior to dismissal.^[38]

[135]         Coutu J. also noted that McIntyre and Quirola do not stand for the proposition cited. In McIntyre, Low J. indicated that although the investigation in that case had been unfair, it remained for the court to determine if in fact there was sexual harassment.^[39] Pitt J. in Quirola commented that he was not aware of any authority in which an employer’s right to dismiss for cause was denied due to an unfair process.^[40]

[136]         Nevertheless, as acknowledged by Coutu J. in Leach, there are many authorities where the existence of a fair process and opportunity to respond have been considered in assessing the employer’s decision to dismiss.^[41]

[137]         As did Coutu J. in Leach,^[42] I accept the following statement from Echlin and Certosimo’s Just Cause: The Law of Summary Dismissal in Canada,^[43] as accurately reflecting today’s jurisprudence on this issue:

It may be that while, a duty to provide a fair hearing may not arise in the common. law employment context the very nature of the allegations of sexual harassment, based for the most part on the accusations of one employee against another, compels the employer to exercise a degree of care in prosecuting the allegations, so as to balance the “rights” of the accused employee with those of the victim. While there are divergent views on this point, it does appear, that at the very least, by providing to the accused employee an opportunity to respond to allegations of harassment the employer enhances its case.