As workplace investigators, we often make decisions that can have serious consequences for an individual’s employment status. As such, our decisions can be subject to review by arbitrators, tribunals, and/or the courts. Some recent decisions shed light on the standards of fairness expected in investigations, what may or may not amount to a “flawed investigation,” and how to remedy one.
In Finkle v. Nova Scotia Health Authority, two physicians sought judicial review of disciplinary decisions made with respect to their conduct by the Nova Scotia Health Authority (“NSHA”). The disciplinary decisions followed investigations into complaints of harassment by an independent third party retained by the NSHA. The physicians submitted that the complaints process undertaken by the NSHA (including the investigation) was inherently flawed and unfair, in breach of the duty of procedural fairness. The court found that the disciplinary decisions had a “high impact” on the physicians, and therefore they were owed a “moderate to high level” of fairness at the investigative stage.
During the investigation, the investigator had provided the physicians with summaries of the allegations and further particulars (including when requested by the physicians). The physicians gave written responses to the allegations and were also interviewed. The court noted that in taking these steps, the investigator appeared to have met the “moderate level of procedural fairness.” The physicians had an opportunity to provide the investigator with the names of witnesses; however, the court noted that neither of the physicians was advised if those persons were contacted or “whether any information was gathered in the course of the investigation” prior to finalizing the investigation report. Importantly, the court found that an “additional level of protection for the Applicants [the physicians] for a re-interview prior to a final report determination may have afforded the Applicants more fairness.”
The procedural importance of allowing parties the opportunity to respond to any new or different evidence gathered during the investigation is a theme that we have seen cropping up more and more in judicial decisions. See, for example, the decision of Marentette v. Canada (Attorney General), a 2024 decision of the Federal Court which found a workplace investigation procedurally unfair for failing to provide the respondent with an opportunity to rebut unfavourable evidence. My colleague Elizabeth Bingham previously wrote about that case here.
In Sheet Metal Workers’ International Association, Local 30 v. Semple Gooder Roofing Corporation, the grievor’s employment was terminated without cause after the employer investigated and concluded that the grievor had engaged in sexual harassment (including masturbating in the back seat of an Uber). The employee grieved that their termination was unjust, in part because of a flawed investigation.
The union raised issues with several aspects of the investigation, but most interestingly for the purpose of this blog was their allegation that the employer had failed to obtain relevant evidence: a video that the Uber driver said that she had taken of the grievor masturbating and that she said she had provided to Uber. The arbitrator was unconvinced by the union’s argument of a flawed investigation – they noted the efforts that the investigator had made to obtain the video: writing to Uber to request it and seeking to obtain it from the Uber driver. The arbitrator found that the employer had taken all reasonable steps to obtain the video, and that concluding the investigation without the video was not a fatal flaw. In making this finding, the arbitrator noted the lack of any authority before them that “suggests that an employer must obtain every piece of evidence that may exist before completing its investigation.”
In the 2025 Federal Court decision of Qi v. Canada (Attorney General), the court considered how to remedy a flawed investigation process. In that case, the applicant employee grieved a workplace investigation and the final report into her allegations of harassment. Among other concerns, the applicant took issue with the fact that she was never given an opportunity to review or reply to the statements that other parties made to the investigator (again we see the theme of sharing evidence with the parties for their reply), nor was she given a copy of any of the preliminary reports that were shown to the other parties before the final investigation report was drafted. Her grievance was rejected and she sought judicial review.
Interestingly, the respondent conceded that the applicant’s right to procedural fairness had been breached, recognizing that she had not been given the opportunity to respond to witness statements or the preliminary report. They disagreed with the applicant however on the remedy: the respondent wanted to re-open the investigation and allow the applicant the opportunity to respond to the evidence and conclusions in the report, whereas the applicant wanted a new investigation from scratch with a new investigator.
After reviewing the case law, the court agreed (somewhat) with the applicant. They ordered a new investigation with either the same or a different investigator, following the same remedy ordered in Marentette. The court differentiated their decision from Brown v. Canada (Attorney General), where the investigation had been ordered to continue with the same investigator (or a different one if the same one was not available) in the hope that the investigator would then resume the investigation in a procedurally correct manner. In Brown, this was on account of how large an investigation it had been (20 interviews and seven reports) and the applicant’s concerns with timeliness – things that were not at issue in Qi. It is an interesting discussion and provides guidance for investigators and employers alike on what to do if valid procedural fairness concerns with an investigation have been raised.
Flawed investigations have serious consequences for all those involved. The parties themselves may have been denied procedural fairness and may be subjected to a second investigation. The investigator may face legal scrutiny as a result. Lastly, the employer may be stuck grappling with the legal fall-out and find themselves dedicating time and resources to a new investigation. Keeping up to date on the case law and understanding the standards of fairness in this evolving area can help protect the investigation process and ensure defensible outcomes.
