Federal Court decision highlights investigator discretion and procedural fairness

When conducted with the appropriate level of procedural fairness, workplace investigations are a critical tool, and in many cases a legal requirement, for employers seeking to maintain safe, respectful, and compliant workplaces. A fair investigative process allows employers to rely on findings when making management or disciplinary decisions, reducing legal and reputational risk. 

A recent decision of the Federal Court of Canada, Andruszkiewicz v. Canada (Attorney General), 2023 FC 528, provides further guidance on what procedural fairness requires in the context of workplace investigations and clarifies the scope of an investigator’s discretion. 

At its core, procedural fairness is grounded in neutrality and transparency. Parties, particularly the responding party, must understand the case to be met and be given a meaningful opportunity to respond to the allegations. While there is no set formula on the process of an investigation, the process must be fair in substance. The goal is to avoid any notion of bias.  

In Andruszkiewicz, the applicant alleged that the investigation into her harassment complaint was procedurally unfair, arguing that: 

• The investigator failed to interview all witnesses she identified.  

• The manner, order, and method of interviews were unfair. 

• The investigation exceeded timelines set out in the employer’s policies. 

Court affirms investigator autonomy  

The court rejected these arguments and found no breach of procedural fairness. In doing so, the court emphasized that investigators, whether internal or external, are afforded considerable latitude in how investigations are conducted, provided the overarching requirements of fairness and neutrality are met. 

For employers and investigators, these are some key takeaways from the court’s decision: 

Investigators are not required to interview every proposed witness: The court confirmed that an investigation is not procedurally unfair simply because an investigator declines to interview all individuals identified by a party. Investigators retain discretion to determine which witnesses are necessary. In this case, the decision not to interview an individual who could allegedly provide a similar example of harassment was reasonable, as the individual did not witness the alleged incidents, was not the respondent, and would not have offered probative evidence capable of materially affecting the outcome. 

Interview format, order, and questioning fall within investigator discretion: The court made clear that decisions about how interviews are conducted, including whether they occur by phone, video call, or in person, are within the investigator’s authority (noting that in-person and video-call interviews are preferred). The same applies to the order of interviews and the questions asked. While best practices often suggest interviewing the complainant first (as this allows an investigator to confirm the allegations to be reviewed), the court confirmed that deviations from preferred approaches do not amount to unfairness, provided the investigator maintains overall neutrality. 

Policy timelines are flexible where reasonable diligence is shown: While investigations must be conducted thoroughly and without unnecessary delay, employer-imposed timelines via policies and/or internal directives are not rigid. The court found no unfairness where the investigation exceeded the employer’s 12-month timeline by three months, noting that the investigator acted with reasonable diligence in scheduling the interviews and ultimately providing the report. Despite no extenuating circumstances, the investigator’s reasonable diligence was enough to allow for the delay. The court noted that an even greater deal of leeway can be afforded when the investigation is highly complex, assessed on a case-by-case basis. Overall, employers must be able to demonstrate reasonable effort and care, rather than strict compliance with internal deadlines. 

Accuracy and documentation matter: The court also viewed positively the investigator’s efforts to ensure accuracy throughout the process, including maintaining detailed records (i.e. recordings) and providing parties with opportunities to confirm interview notes after their respective interviews. Such practices can strengthen the defensibility of an investigation if later challenged. 

Thorough, balanced investigations likely to hold up 

Courts will not re-conduct workplace investigations or second-guess investigative decisions simply because a party disagrees with the outcome. So long as an investigation is not clearly deficient, ignores critical evidence, or demonstrates bias, it will generally withstand scrutiny. 

For employers, this decision from the Federal Court reinforces the importance of selecting competent investigators, allowing them the independence to conduct investigations properly, and focusing on fairness in substance and not perfection in form. 

Anna Maria Moscardelli is a lawyer at Neuman Thompson in Edmonton, specializing in labour law, employment law, administrative law, and human rights law. Anna Scarpelli is an associate lawyer at Neuman Thompson in Edmonton.