Workplace investigations have become a routine feature of modern employment relationships. Whether arising from allegations of harassment, violence, discrimination, or misconduct, they are now embedded in statutory regimes, workplace policies, and organizational culture. At the same time, a growing body of case law suggests that while investigations are increasingly common, they are not always conducted properly. Two recent decisions of the Federal Court—Marentette v Canada (Attorney General) and Brown v Canada (Attorney General)—provide timely guidance on what procedural fairness requires in this context. Together, they underscore a point that is sometimes overlooked: an investigation is not merely a fact-finding exercise—it is a process that must be fair to all involved.
A “Heavy” Duty of Fairness
The Court reaffirmed that workplace investigations—particularly those involving harassment or violence—attract a high level of procedural fairness. This is not surprising. As the Court noted, such investigations can have serious consequences for everyone involved: reputational harm, workplace disruption, and long-term professional impact. The duty of fairness is therefore not minimal or perfunctory. It is, in the Court’s words, a “heavy” obligation, grounded in long-standing administrative law principles.
The Core Principle: Know the Case, Meet the Case
At the heart of both decisions lies a simple but powerful requirement:
A person affected by an investigation must know the case against them and have a meaningful opportunity to respond.
This principle was breached in both cases. In Marentette, the complainant was never told what witnesses had said about him and was not given an opportunity to respond before the report was finalized. In Brown, the same deficiency arose—the investigator gathered evidence from others and reached conclusions without ever putting that evidence to the complainant for comment. In both instances, the Court set aside the investigation results. The message is clear:
It is not enough to interview a complainant once and then proceed in private.
The Importance of the Preliminary Report
A recurring flaw in both cases was the failure to provide a preliminary report or equivalent disclosure. The Court emphasized that fairness generally requires:
- Disclosure of adverse evidence gathered during the investigation
- A meaningful opportunity to respond to that evidence
- An opportunity to comment on the investigator’s preliminary findings
Without these steps, the process risks becoming one-sided—however well-intentioned it may be.
Fairness Applies to Everyone
One notable aspect of these decisions is the Court’s rejection of the idea that procedural fairness protects only respondents. Fairness applies to all participants—complainants and respondents alike. An investigation that denies either party the opportunity to respond to key evidence is vulnerable to challenge.
Confidentiality vs. Fairness: A False Choice
Investigators often face competing pressures: maintaining confidentiality while ensuring fairness. The Court made it clear that confidentiality does not displace fairness. While identities may be protected and processes streamlined, the core obligation remains:
Parties must be given enough information to respond meaningfully to the case against them.
Efficiency and confidentiality are important—but they cannot come at the expense of procedural integrity.
The Limits of Judicial Deference
Courts are generally reluctant to second-guess how an investigation is conducted. Decisions about:
- which witnesses to interview
- how interviews are conducted
- how evidence is weighed
are typically left to the investigator. However, there is a clear boundary. Where the process itself is unfair—where a party is denied the right to respond—the investigation will not stand, regardless of how thorough it may otherwise appear.
Why This Matters Going Forward
These decisions reflect a broader trend. Workplace investigations are increasingly subject to legal scrutiny. As regulatory regimes expand and expectations rise, investigations are no longer insulated internal processes. They are, in effect, quasi-adjudicative exercises.This has practical implications:
- Employers face increased risk if investigations are flawed
- Investigators must be attentive not just to substance, but to process
- Counsel will increasingly examine investigations through the lens of procedural fairness
In short, this is an area where process is outcome-determinative.
Practical Guidance: Getting It Right
The emerging jurisprudence suggests several best practices:
- Provide meaningful disclosure
Parties must be informed of the substance of adverse evidence. - Allow a real opportunity to respond
This includes responding to both witness accounts and the investigator’s developing conclusions. - Use preliminary reports (or equivalent steps)
A draft report or summary of findings is often essential to fairness. - Avoid “closed file” investigations
Investigations should not be completed without giving parties a chance to address key issues. - Maintain independence and neutrality
The investigator’s role is not to advocate for either side, but to assess evidence fairly.
A Note on the Role of the Investigator
One theme that emerges—both from these decisions and from practical experience—is the critical importance of the investigator. Workplace investigations are sometimes treated as administrative exercises that can be delegated without much scrutiny. In reality, they require a careful blend of legal understanding, judgment, and practical experience. An investigator must do more than gather information. They must:
- understand the legal framework of procedural fairness;
- assess credibility in a disciplined and transparent way;
- ensure that each party has a meaningful opportunity to respond; and
- remain independent, even where retained and paid by one side of the dispute.
In my experience, many of the difficulties that later surface on judicial review do not arise from bad intentions. They arise from a lack of appreciation for the procedural obligations that govern the process. The cases discussed above illustrate that even a well-intentioned investigation can fail if those obligations are not properly understood and applied. As workplace investigations continue to expand in scope and importance, the selection of an investigator is not a procedural detail—it is a substantive decision that can determine whether the process will withstand scrutiny.
A Final Observation
Workplace investigations serve an important purpose. When conducted properly, they can resolve disputes, improve workplace culture, and provide clarity. But when fairness is compromised, the consequences are significant—not only for the parties involved, but for the integrity of the process itself. The recent case law is a reminder that fairness is not a procedural technicality—it is the foundation of a defensible investigation. For organizations and counsel navigating these issues, careful attention to both process and expertise at the outset of an investigation can make all the difference in whether the result endures.