As the prevalence of workplace incidents and investigations continues to gain momentum, questions abound regarding process come to us from interested parties including Complainants, Respondents and Employers investigating.  In the recent 2024 case of Marentette v. Canada (Attorney General), the Federal Court of Canada does a deep dive in its legal analysis of the applicable legislation and a thorough history of the case law in this area, with helpful takeaways, which we summarize below.

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In this case, a Canada border agent, Chris Marentette, initiated a workplace complaint by “notice of occurrence” under the federal regulations regarding a pattern of harassing behaviors he was alleged to have been experiencing at work; an investigation was initiated, and he was interviewed.  The investigator then interviewed the Respondents, and the witnesses. The investigator then compiled a report that found Mr. Marentette’s notice of occurrence could not be substantiated based on the evidence and on the balance of probabilities, which is the applicable legal standard of proof in these investigations.  

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On judicial review of the matter, the main issue was the question surrounding procedural fairness (or lack thereof).  Because Mr. Marentette was never provided the Respondents’ evidence or the witnesses’ evidence, he was not afforded the reasonable chance to rebut, refute, provide context, deny or otherwise speak to their evidence before the final report was drafted, then adopted by his employer.  Justice Brown found that the investigation was flawed for these reasons, and remanded the notice of occurrence for re-determination by a new investigator.  

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In support of the view that procedural fairness for Mr. Marentette had been wrongly denied in this instance, the court agreed with his submissions that workplace harassment and violence investigations are to be afforded a high level of procedural fairness; the impact on individuals involved affects them personally, professionally, and often impacts the working experience and environment.  

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Key takeaways:

• “right to respond” is of paramount importance for both the Complainant and the Respondent(s): each affected party is to be given a meaningful opportunity to respond to any evidence gathered during the course of investigation
• Investigation procedure is to be transparent and conducted in a timely manner
• Investigation procedures must reflect the regulatory regime(s) in place, with policy requirements being duly met
• Parties (not witnesses) are to be kept up-to-date as the investigation unfolds

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For further information, see case in full: Marentette v. Canada (Attorney General), 2024 FC 676 (CanLII); and Federal Regulation, Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, made pursuant to subsections 125(3) and 157(1) of the Canada Labour Code, (RSC 1985, c. L-2).

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