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CBSA Directed to Conduct New Investigation After "Fundamentally Flawed" Inquiry

May 28, 2024

CBSA Directed to Conduct New Investigation After "Fundamentally Flawed" Inquiry

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The Federal Court has instructed the Canada Border Services Agency (CBSA) to conduct a new workplace investigation, appointing a different investigator this time. This decision follows extensive allegations from a veteran border guard about enduring workplace harassment and violence.

C.M., who joined the CBSA in 1994, reported experiencing various forms of mistreatment, including hate crimes, discrimination, physical assaults, and derogatory behaviour from supervisors, over a 25-year period from 1995 to 2020.

In January 2023, a CBSA report concluded that none of these incidents constituted workplace harassment or violence under their guidelines. As a result, no preventive measures were taken, and the case was closed.

Dissatisfied with the investigation’s findings and process, C.M. filed a judicial review, arguing that the investigation was procedurally unfair. The Federal Court sided with C.M., describing the process and final report as "fundamentally flawed" and ordering a new investigation by a different investigator.

Concerns Over Procedural Fairness

The court identified significant procedural failings in the CBSA's initial investigation, most importantly C.M. was not allowed to review or respond to contradictory statements or see the preliminary report as required in the CBSA’s Workplace Harassment and Violence Prevention Regulations Checklist before the final decision was made. The court ruled that this exclusion violated procedural fairness and warranted a fresh investigation.

Questions on Harassment Definitions

The court's decision also raised concerns about the standards the CBSA used to define harassment and violence. The initial investigator’s findings that none of the reported incidents met these standards were a key factor prompting C.M. to seek judicial review.  In this case, the investigator wrongly looked at each incident separately, and did not consider that together the incidents demonstrated a pattern of activity.

Issues with Transparency

A major issue highlighted by the court was the lack of transparency and communication during the investigative process. The judge emphasized that C.M. should have been given the opportunity to counter any unfavourable evidence and respond to claims by managers that their behaviour did not amount to harassment or violence.

Mandate for a New Investigation

In its ruling, the court not only mandated a new investigation but also emphasized the importance of allowing C.M. to review and respond to all evidence and findings before the final report is issued. Emphasizing the importance of following the written policy at CBSA, the court stated, “The matter is referred back to CBSA for redetermination after a new investigation is conducted by a different investigator and after the Applicant has had the opportunity to see and make submissions on evidence gathered in his absence and to comment on the investigator’s preliminary report before it is sent to CBSA.”

Furthermore, the court awarded C.M. $3,500 for costs, a pre-agreed sum between both parties.

For more details, see Marentette v. Canada (Attorney General), 2024 FC 676 (CanLII).

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