One of the cornerstones of fairness in workplace investigations is that the respondent must know the allegations made against them. A recent labour arbitration decision entitled, Ontario Northland Transportation Commission v. Teamsters Canada Rail Conference Maintenance of Way Employees Division,1 takes it a step further and highlights how respondents are also entitled to know key evidence used to make findings against them. While the main issue in this case arises from a specific collective agreement provision, the case provides an important lesson for all workplace investigators.
The grievor was a foreman for the employer for approximately 15 years. On March 6, 2025, a train yard manager asked the grievor to pump water out of certain train tracks to prevent freezing. The grievor replied that workers didn't pump water from their yard and that, in any case, he could not complete the task because his hose wasn't long enough. The grievor made it clear he wouldn't even try to complete the task assigned to him. The grievor phoned his manager and reiterated that he disagreed with the yard manager's request because none of the grievor's colleagues remembered pumping water from the yard. The yard manager later spoke to the grievor's manager.
Later that day, the grievor approached the yard manager and publicly told her she was not his boss and shouldn't have called his manager. While the grievor did not speak loudly or use vulgar language, he did continually question the yard manager's authority in public, in front of others. The grievor continued telling the yard manager the task she assigned to him couldn't be done and again refused to even try.
The grievor's conduct led to an internal investigation.
The collective agreement at play in this case contained important procedural provisions for investigations. The relevant provisions provide that:
On April 10, 2025, the grievor received a letter of discipline because of his conduct towards the yard manager the month prior. The letter informed the grievor that he was assessed 25 demerit points for:
The discipline letter also stated that, contrary to the grievor's claim that he couldn't pump water out of the tracks because he only had a 50-foot hose, another worker was able to complete the task with the same equipment. However, the statement about the grievor's colleague completing the task with same equipment later proved to be false.
The union filed a grievance on May 13, 2025.
The union argued that the investigation into the grievor's conduct was improper, unfair, and violated the collective agreement's procedural requirements. More specifically, the union argued that the employer violated the collective agreement's provision giving employees the right to "hear all the evidence submitted and [...] be given an opportunity" to ask witnesses questions. The grievor was not provided evidence during the investigation about the worker who was said to have completed the water pumping task. Rather, the grievor first learned about that when he received his discipline letter. For this and other reasons not central to this blog, the union requested that the grievor's discipline letter be revoked.
In response, the employer argued that its investigation was fair and impartial and that it conformed to the collective agreement provisions. The employer also argued that the decision to discipline the grievor was not based on whether the task he was asked to perform could in fact be completed, whether by him or a colleague. Rather, the grievor was disciplined because of his insubordinate and combative conduct in refusing to perform the task assigned to him, and for later inappropriately addressing the yard manager in front of others. The discipline letter's reference to the other worker completing the task was simply "a side note."
The employer argued that the grievance should be dismissed.
The arbitrator found that the employer's investigation was fair and impartial. Despite the union's concerns that the employer relied on evidence that the grievor's colleague completed the water pumping task that the grievor refused and said could not be done, the arbitrator saw things differently. The arbitrator mentioned that during submissions and in its reply, the employer said it didn't rely on evidence about the grievor's colleague completing the task. The arbitrator found that failing to communicate evidence to a respondent will only impact the fairness of an investigation when that evidence is a "keystone document" fundamental to the issue being investigated.
In the grievor's case, he was disciplined because he refused to even try performing a task assigned to him and was later combative when speaking to the yard manager in front of others. That said, the arbitrator noted that the discipline letter did seem to suggest that the grievor was disciplined because his assertion that the task could not be completed with the available equipment was proven to be false. Nevertheless, the arbitrator found that the information about the grievor's colleague completing the task did not need to be communicated because it was irrelevant to the imposition of discipline.
The Ontario Northland decision contains important takeaways for employers and investigators. The decision demonstrates the importance of putting key evidence used to make findings to the respondent before reaching conclusions. Without providing the respondent an opportunity to address critical evidence about issues being investigated, there is a heightened risk that the investigation will be deemed unfair. Respondents need to know the fundamental evidence supporting the allegations made against them to properly respond to those allegations.
The need for investigators to provide parties an opportunity to reply to all relevant evidence emerging from the investigation was recently addressed in an Ontario Labour Relations Board decision entitled, Alyssa Gassi v. The Corporation of the County of Lambton, which my colleague Janice Rubin recently wrote about2. In that case, the arbitrator determined that an investigation was not "appropriate in the circumstances" because the complainant was not given an opportunity to reply to evidence before her employer dismissed her complaint. While the Gassi and Ontario Northland decisions differ in key respects, they agree on the fundamental principle that complainants and respondents must be able to address key evidence that will be used to support findings made against them.
1. 2026 CanLII 82096 (CA LA).
2. See, Janice Rubin, "A Failure to Provide the Complainant with an Opportunity to Reply to the Evidence Means that an Investigation was not Appropriate in the Circumstances" (August 5, 2026), online (blog): Rubin & Co. LLP, https://rubinandco.ca/blogs/gassi-v-county-of-lambton.
