Workplace investigations can be difficult. In certain cases, an investigator may need to speak with many witnesses and meet with the complainant and the respondent multiple times to follow up on the new information they collected during the investigation. However, if you have an inexperienced or untrained workplace investigator, they may slip up and make a mistake during the investigation. Such a mistake could invalidate the investigation, which could mean that the employer is liable and could be forced to redo the investigation.

Bill C-65, which affects federally regulated workers, sets out the rules on when an investigation should be conducted and who may investigate the matter. Bill C-65 is relatively new. There are not many cases interpreting the legislation and how it applies to the workplace. However, we are starting to see some cases that address Bill C-65, one of them being Marentette v Canada (Attorney General) (2024 FC 676).

Marentette v Canada (Attorney General) (2024 FC 676)

In Marentette v Canada (Attorney General), Chris Marentette worked as a Border Services officer with the Canadian Border Services Agency (CBSA) since 1994. On April 18, 2021, Mr. Marentette filed a notice of occurrence, as required under Bill C-65. In the notice he sets out a series of alleged discriminatory experiences that he faced, in connection with his sexual orientation, while working for CBSA. On May 27, 2021, Mr. Marentette met with the Harassment and Prevention Resolution Advisor assigned to the notice, where he advised the employer that he wanted an investigation. The investigation began on April 14, 2022, when CBSA retained an investigator. On May 4, 2022, the investigator interviewed Mr. Marentette. Mr. Marentette gave additional information to his complaint and provided the investigator with a list of potential witnesses. The investigator shared a synopsis of the interview with Mr. Marentette; however, the investigator did not interview Mr. Marentette again or provide him with the preliminary report to review and comment on, as is required under the CBSA policy. On August 11, 2022, Mr. Marentette was informed that the investigation was complete. On January 5, 2023, Mr. Marentette received the Investigator's final report, which CBSA adopted, that found that his complaints did not meet the definition of harassment as set out under Bill C-65. Mr. Marentette filed for Judicial review on February 3, 2023, complaining that he did not receive procedural fairness during the investigation.

The Federal Court judge agreed with Mr. Marentette that he did not receive procedural fairness during the investigation. The judge found that the CBSA policy allowed Mr. Marentette to review the Investigator's preliminary report and provide comments on it. The judge also noted that the case law provides that workplace harassment and violence complaints are afforded a high level of procedural fairness. Based on existing case law, the judge found that Mr. Marentette should have been allowed to rebut the contrary evidence that arose during the investigation and be allowed to see the preliminary report. The judge found that the appropriate remedy was to set aside the findings of the investigator and order that CBSA retain a new investigator who will completely redo the investigation. The judge rejected the CBSA claim that this is redundant as they believed that the same result would occur, as the judge believed the court should not speculate on what might have happened if the process was procedurally fair. The judge also awarded Mr. Marentette the agreed-upon $3,500.00 for costs.

Takeaways from Marentette v Canada (Attorney General) (2024 FC 676)

This case shows the importance of retaining a good investigator. An experienced or well-trained investigator would have provided the countering evidence that they found to the complainant before concluding their investigation. The investigator would then follow up on any new leads that the complainant provided in the follow-up interview.

Denying procedural fairness during a workplace investigation can lead to legal liabilities for the employer. The result of the Marentette v Canada (Attorney General) decision means that the employer, CBSA, will have to hire another investigator to do a full investigation. Such a consequence can easily cost an employer thousands of dollars and be disruptive to the employer's operations.

Although the judge did not address it in this case, the employer's delay in completing the investigation in a timely manner could have also put it in a liable position. Bill C-65 sets strict timelines for investigating workplace harassment and violence complaints. Employers should try retaining a workplace investigator not long after an investigation is requested. A delay of several months, as what occurred in Marentette v Canada (Attorney General), is unacceptable.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation we have trained workplace investigators who are knowledgeable in investigation techniques and the investigation requirements under Bill C-65. If you need an investigation done at your workplace, we can help. To learn more about our workplace investigation services or to contact and speak with one of our trained investigators, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.