Explanatory Introduction
The investigator should explain to the person interviewed their role, the ambition to investigate a complaint, that they will act as a third party neutral and enter the process with no bias. They will explain their retainer and maintain that this will have no impact upon their intent to discover the truth, or not, of the allegations made in the complaint.
Consequences of Unfair Investigation
It is important to determine the rules of fairness of the investigative process, be that under a statutory authority or otherwise. The failure to allow for a fair process undertaken by statute may allow for a judicial review. An unfair process lacking a statutory basis may well give rise to a claim for aggravated and/or punitive damages as is reviewed here.
Principles of Due Process
The cases on this subject have set out the expected standards of fairness in conducting the investigation. This concept of “due process” will require, at a minimum, that the suspected one to know the substance of the allegations made against them, and be provided the opportunity to reply.
The 1992 decision of the Ontario Court of Appeal in Francis v CIBC found that the Bank had made serious allegations of fraud against Trusty Francis and in so doing had failed to allow him the opportunity to answer these assertions, in addition to other failings. The decision of the Court of Appeal noted:
The appellant flagrantly made serious allegations against the respondent, amounting to fraud or moral turpitude, without providing the plaintiff with an opportunity to answer those allegations;
As stated in Leach v Canadian Blood Services a 2001 decision of the Alberta Queen’s Bench, the investigation should be (1) fair and thorough, (2) the employee should be notified of the complaint, (3) the employee should receive a copy of the Harassment Policy, where applicable, (4) the employee should be given time to prepare and reply to the issues, (5) the employee should be given a copy of the complaint and any relevant documents material to the issue, (6) the employee should be invited to seek and employ legal counsel, and (7) detailed notes should be made of the meeting. The court added that it would have been useful to have the meeting videotaped.
This case involved a civil claim brought by Leach, following his dismissal. The employer had conducted an investigation of the allegations made against him of sexual harassment, one which resulted in his termination for just cause.
The context of these remarks was not that the failure to provide these safeguards, or any one of them, was actionable, but rather having behaved in this manner, there was no procedural unfairness.
In 2004, the Ontario court considered a similar claim made by the plaintiff, also terminated following an investigation stemming from a sexual harassment complaint. The court was critical of the manner of investigation. Concern was expressed by the trial judge that the defendant chose a former employee to conduct the investigation, as opposed to an independent external investigator.
It also stated that the plaintiff ought to have been suspended with pay pending the completion of the investigation. 1 Further, the plaintiff should have been given the right to respond to the allegations. In addition, the information contained in the report should have been presented to the Board for their impartial determination. 2
A multitude of common law cases have driven home this theme. It would appear that nothing could be any more fundamental in the pursuit of learning “what did happen here” and fairness to the accused.
The June 2010 decision of the Alberta Queen’s Bench of Erb J. in Chapell v CPR considered the same premise as to the conduct of a fair investigation. The court concluded that it is an expected standard of a fair investigation that, prior to confronting the alleged offender, the employee should be given full notice of the details of the allegations made against him and not suddenly be “blind-sided” in the course of the meeting with unforeseen allegations.
This principle is one firmly engrained. A more recent decision to the same end is the 2016 reasons in Joshi v National Bank.
The court found that in this case that there was an implied contractual obligation, "at a minimum" to allow the plaintiff due process and allow him to respond or refute the allegations. The important feature of this decision is that the court accepted the fundamental precept that there was a good faith “due process" term implied into the employment relationship. 3
Compliance with the Harassment Policy
It stands to reason that should the employer maintain and advocate its policy of making and investigating workplace complaints, it should follow its own protocol.
In the 2009 B.C. Supreme Court decision of van Woerkens v Marriott Hotels of Canada of Pearlman J., the employer’s policy required a written letter of warning be provided to commence an investigation and further that such a letter required the investigation be commenced within one year following its publication.
The employer provided instead a “letter of expectations” which was offside the policy. In addition, the company did not invite the plaintiff to reply to other allegations of wrongdoing, which were unrelated to the substantive complaint of sexual harassment. The Court stated:
By signing the “Conditions of Employment”, the plaintiff acknowledged his understanding that Marriott might dismiss him without a warning for sexual harassment. However, in light of the defendant’s references to the “Guarantee of Fair Treatment” in both the “Conditions of Employment” and its Guidelines for Leaders policy, I find that Mr. van Woerkens also had reason to anticipate that his General Manager, Mr. Munro, would give him an opportunity to respond to the allegations of misconduct before making the decision to terminate his employment for sexual harassment or other serious misconduct.
[148] Although the plaintiff was interviewed and afforded some opportunity to respond to the allegations against him during the investigation, he was taken by surprise when first confronted with serious allegations of misconduct. He had been led to believe that he would also have the opportunity to discuss the complaint and his response with his General Manager before the defendant made any final decision respecting his employment. The defendant did not provide him with an opportunity to be heard by the decision-maker before it terminated his employment for cause.
In this instance, nonetheless, the court found that there was just cause for dismissal due to the deceit of the plaintiff in the investigative process and his conduct which was found to be sexual harassment of a co-worker.
The Ontario Superior Court decision of Aitken J. 4 also involved the failure of the company to implement the terms of its policy manual dealing with a sexual harassment complaint. In this instance, the court found in favour of the plaintiff, a conclusion which was heavily influenced by the unfair conduct of the employer in implementing its determined protocol of investigation. The Court stated:
Following this section is a statement regarding Employee’s Rights. It includes an obligation on the company to treat employees openly, fairly and equitably. An employee subject to discipline must be given a full explanation of reasons for any corrective action to be taken and every reasonable opportunity to explain his actions and to rectify an unsatisfactory situation. In my view, this did not happen in this case.
Federal Court on Procedural Fairness
A May 2024 Federal Court decision considered the issue of procedural fairness in the investigative process dealing with a complaint made under the Federal Work Place Harassment and Violence Prevention Regulations. These regulations were passed pursuant to the Canada Labour Code. 5
The case involved complaints made by the employee against the Canada Border Services Agency, alleging various forms of adverse treatment alleging that he was a victim of hate crimes, discrimination, physical assaults and other derogatory conduct from his immediate superiors. The initial report of the investigator concluded that none of these events had amounted to workplace harassment or violence under the employer’s guidelines and dismissed the complaint.
The employee successfully sought judicial review of this outcome. The Federal Court viewed the process as being “fundamentally flawed” and ordered that a new investigation be undertaken by a second investigator. 6
The decision focused on the defects in the investigative process. The most significant of such failings was the failure of the investigator to allow the employee to review and be given the right to respond to the contradictory evidence obtained by the investigator. The Court also found that the employee should have received a copy of the preliminary report as this was required by the employer’s policy.
The Court also found that the investigator’s finding that none of the events, examined distinctively, failed to meet the standard of wrongdoing under the Regulations and in so doing, had failed to consider the cumulative impact of such allegations.
It was noted that questions of procedural fairness are reviewed on the standard of correctness. Investigations of this nature dealing with workplace harassment and violence, the Court concluded, are to be given a high level of procedural fairness. This was also buttressed by the argument that the Regulations are remedial in nature.
The case was one using a statutory process which will distinguish it from the usual workplace investigation. Nonetheless, the principles may well be welcomed by civil courts to define the standard of fairness to be afforded to a person subjected to such an investigative process.
Anecdotal Review
The CIBC failed to honour this very fundamental premise of fairness in Ogden v CIBC, which was very much to its detriment. The court determined that it was unfair for the investigator not, in this context, to have returned to the suspected one to obtain further information. 7
[418] In this case, Mr. Fossen, Mr. Stevenson, and Mr. Clark all understood the purpose of Mr. Clark’s interview was to give Ms. Ogden a chance to explain her conduct. Despite that goal, the interview was conducted in a manner that undermined its very purpose. Although Mr. Fossen acknowledged that Mr. Clark’s interview did not achieve its goal, he did not send Mr. Clark back to obtain further information.
[419] This is a critical point. Mr. Fossen was responsible for ensuring that Mr. Clark’s interview achieved its purpose. When the interview did not achieve its purpose, Mr. Fossen should have sent him back.
This decision parallels the reasoning of the Federal Court as set out above.
Other commentators have suggested that the complainant should be asked for a list of witnesses and interviews of these persons should be conducted.
The questions asked by the investigator should be open ended, much as a witness would be questioned in chief at a trial. There should not be a suggested answer in the question.
All original handwritten notes should be kept, even when the notes are later transcribed. This was noted in the 2011 Ontario decision in which the trial judge commented adversely to the employer that the original handwritten notes ought not to have been destroyed. 8
Fair summaries of the evidence of the contrary witnesses should be given to those adverse in interest.
In a case involving termination or other discipline, the investigator should apply the contextual analysis as set out by the Supreme Court of Canada in McKinley v BC Tel.
Ironically, many cases have turned on the failure of the investigator to show an open mind and instead choose to enter the fray with a one-sided mission to prove that his or her pre-determined belief is proven by the biased investigation.
In the Francis case referenced above, the Court of Appeal noted the findings of Hoilett J. at trial that the investigator paid no heed to the Bank’s internal audit, nor did he question the plaintiff’s superiors and colleagues. The investigation was “shoddy and biased”:
The report of Matheson was shoddy and biased. Matheson did not question any of the plaintiff's colleagues or superiors; nor did he avail himself of the results of an independent audit ordered by the bank.
(b) The appellant flagrantly made serious allegations against the respondent, amounting to fraud or moral turpitude, without providing the plaintiff with an opportunity to answer those allegations;
The finding of the trial judge, clearly influential to the Court of Appeal was that:
The appellant failed to conduct a full investigation before reaching conclusions devastating to the plaintiff's reputation;
A similar theme was evident in the above decision of Wong J. in Ogden v CIBC. 9 In this case the plaintiff had been the subject of prior discipline but when the events which led to this were examined, they were relatively innocuous. The panel making the decision to terminate had not been given the details of the prior events and had been incorrectly told that the plaintiff had been guilty of three prior breaches of the Bank’s Code of Conduct. The court was not impressed:
Failing to ensure the panel had complete and accurate information, and forging ahead with a termination despite having a heightened responsibility to get it right, was cavalier, reckless, and negligent. It constituted “unfair dealings” and was a clear breach of the duty of good faith CIBC owed to Ms. Ogden.
To add more grist to the mill, the investigator was found to be prejudiced against the plaintiff and failed to conduct an unbiased inquiry. Wong J. stated:
Mr. Clark, a former RCMP officer with nearly 30 years of investigating financial crimes and interviewing witnesses, failed in his task.
[413] Mr. Clark’s approach during his interview of Ms. Ogden undermined its very purpose. He cut her off, was not interested in her explanation, claimed to get acknowledgments that he had not obtained, and never provided her with a reasonable opportunity to explain her conduct. He failed to determine key facts and did not ascertain whether she knew her conduct was wrong at the time she exercised her judgment. Instead, he jumped to conclusions and made assumptions upon which the panel relied and which had a devastating impact on Ms. Ogden’s career.
The trial court determined that an award of aggravated damages, but not punitive would follow. Given the devastating consequences of a career ending termination, the fact that the plaintiff was seven months pregnant and had been deprived of earned commissions of over $250,000. This award was set aside on appeal and a new trial was ordered.
Collaboration between Witnesses
One factor considered by the trial judge in Roe v Schneider National Carriers Inc. in allowing the plaintiff’s claim, was that the witnesses had been allowed to hear each other’s version of events. Taliano J. summarized the failed investigative techniques as follows:
But there are other problems with the defendant’s position and those problems relate to the defendant’s investigation of the complaints. The first problem relates to the fact that the complainants had compared notes prior to logging their complaints with management. When they did approach management, they were permitted to voice their complaints in the presence of one another. When they were asked to put their complaints in writing, they were not cautioned not to speak to each other about their respective complaints and were not urged to express only their own individual experiences. These deficiencies
Employer Not to Be Judged Too Harshly
As a guide post to future employer investigations of sexual harassment investigations, the Alberta Court of Appeal in Elgert, referenced above, also offered a note of restraint in judging the employer’s conduct overly harshly.
The Court concluded that it would be quite acceptable for the employer to come to a conclusion which is different from that of the court, and even to do so in a “clumsy” manner and yet not be subject to awards of punitive or aggravated damages.
[88] When evaluating the employer’s conduct in the context of punitive or aggravated damages, it is important to acknowledge that an employer cannot be faulted for honestly believing an allegation of sexual harassment (or any other wrongdoing) and should not be punished simply because an investigation was clumsy or a jury subsequently concludes that the allegation was not substantiated. An employer is entitled, indeed sometimes required, to make decisions to suspend or terminate employees (even if a court subsequently disagrees with its assessment) without being subject to a claim for punitive or aggravated damages. Employers must take seriously allegations of sexual harassment.
The acceptable method of the investigative process is not an exact science. The standards expected will be influenced by the context, the policies in place, the degree of sophistication and experience of the employer’s workplace. The Court used these words to explain this:
There is no specific standard of investigation that employers must follow; what is required will vary depending on the facts surrounding the employer, its policies, sophistication, experience and the workplace. Courts must not require such a high standard of investigation that there is a chilling effect on employers’ manner of dealing with allegations of sexual harassment.
Assessing Credibility
Inevitably, there will be conflicting versions of events from the persons interviewed. The investigator must be alive to the principles of assessing truthfulness as set out in the 1952 British Columbia Court of Appeal decision. 10