In a September 2, 2016 decision out of the Federal Court, Justice Russel Zinn did not mince words in his finding that a workplace investigator failed to retain an open mind during the course of her investigation. The decision, Balraj Shoan and Attorney General of Canada (2016 FC 1003) is a pointed reminder for all workplace investigators, internal and external, of the importance of staying neutral and unbiased throughout the course of a workplace investigation. In this case, the failure of the workplace investigator to maintain an open mind resulted in the employer losing the ability to rely on the findings of the report.

Background

In September, 2014, an Executive Director at the Canadian Radio-Television and Telecommunication Commission (the “CRTC”) lodged a complaint of harassment against CRTC Commissioner Balraj (Raj) Shoan. Commissioner Shoan held his position by virtue of a Governor in Council (“GIC”) appointment, which is made through the Governor General on the advice of the responsible federal Minister.

The original complaint alleged that Commissioner Shoan had humiliated the Complainant and undermined her credibility to her CRTC superiors and staff through a series of seven email exchanges. There was a culminating email in which the Complainant felt that Commissioner Shoan had attempted to destroy her career and reputation by threatening to lodge a complaint with the Office of the Commissioner for Public Service Integrity. The Complainant requested that the CRTC proceed in accordance with the Treasury Board Secretariat’s (the “TBS”) Policy on Harassment Prevention and Resolution[1].

According to the CRTC’s own internal harassment guidelines, the Secretary General of the CRTC, John Traversy, (the “Secretary General”) was the delegated manager of the complaint; his responsibilities included: “reviewing and evaluating the Complaint to ensure it complied with TBS Policy, advising the respondent of the Complaint, attempting mediation and, failing resolution, referring the Complaint to an impartial third party for an investigation.”[2]

According to Justice Zinn’s decision, mediation was refused, and an external investigation into the allegations was initiated.  The facts indicate that the CRTC human resources department found their eventual investigator(s)[3] through a standing offer list of people “who [had] already been retained on contract, [met] the competency profile,[4]and [met] other conditions including security and confidentiality requirements.” [5]

The Investigation Report and Outcome

The investigation report concluded that Commissioner Shoan’s behaviour was inappropriate and constituted harassment. Secretary General Traversy advised Commissioner Shoan that he was in agreement with the findings of the investigation report, and that he was recommending to the Chairman and CEO of the CRTC, Jean-Pierre Blais (the “Chairman”), the implementation of interim measures which would restrict Commissioner Shoan’s interactions with the Complainant and her staff. He also advised Commissioner Shoan that he would be sending a copy of the investigation report to the Minister of Canadian Heritage and Official Languages. The interim measures were accepted and implemented by the Chairman and, eventually, Commissioner Shoan’s GIC appointment was revoked through the Minister.

Prior to the revocation of his appointment, then-Commissioner Shoan sought judicial review at the Federal Court of the Chairman’s acceptance of the workplace investigation report.

Judicial Review at the Federal Court

In his judicial review of the workplace investigation, Justice Zinn examined whether the standards of procedural fairness had been met. He indicated that because a harassment investigation has significant consequences for all parties involved, this was the standard to apply. In these circumstances, he placed those requirements at the “upper end” of the flexible and variable scale enunciated by the Supreme Court of Canada.[6]  While Commissioner Shoan argued that the investigator had been biased, the eventual question that Justice Zinn set out to answer was whether or not the investigator had “failed to keep an open mind, such that the question of whether Commissioner Shoan had harassed [the Complainant] had been pre-determined.” [7]

In coming to his conclusion that the standard of open-mindedness had been lost, which resulted in the denial of procedural fairness to Commissioner Shoan, Justice Zinn reached his decision based on the “cumulative impact of many aspects of the investigative process and the report it produced” and relied on the following indicators:

• Commissioner Shoan’s own affidavit evidence that “the investigators were argumentative”, interrupted him, and that the “body language of the investigators was one of a negative pre-disposition; they shook their heads often and frowned openly.” [8]

• Evidence from witnesses who were interviewed as part of the investigation, who had told Commissioner Shoan[9] that :

– the “investigators had already made their minds up  and that they were ‘unbelievably biased’ “ against Commissioner Shoan and that  the ‘fix is in’;

– the investigator “appeared to be influenced by the reputation of the Chairman” and seemed overly focused on the Chairperson, not the allegations at hand; and

– there was pressure to provide a negative statement against Commissioner Shoan and that the investigators had asked heavily leading questions

• The fact that the Chairman, the delegated manager of the harassment investigation process, was also a witness in the investigation and provided evidence that went beyond an objective description of roles and responsibilities or facts surrounding the emails. The Chairman provided his personal views on Commissioner Shoan’s conduct, including that Commissioner Shoan “wanted to take more and more of the spotlight”, “it is difficult to trust him”, “his conduct and remarks have had a serious impact on staff and the organization”, “he tries to intimidate and he has damaged his relations with key people”, and “he has made the working environment toxic”. [10]

• The fact that the investigation expanded well beyond the original scope of the seven email chains, and that the investigator was provided with additional emails and sought out information about events in a much broader time frame than was originally included in the mandate.

Justice Zinn determined that this additional information did not have a direct relationship to the incidents under investigation, and examining them prior to the primary determination was unfair and prejudicial.

Justice Zinn agreed with Commissioner Shoan’s submission that “the investigation turned into a “witch hunt” where the investigator looked into essentially every detail and interaction Commissioner Shoan had with CRTC staff to try to find harassment, rather than examining the complaints themselves to determine if harassment occurred.[11]

The Investigator’s Closed Mind

In coming to the conclusion that the investigator had failed to keep an open mind, Justice Zinn relied on the following behaviours of the investigator:

• She appeared to follow the direction given by the Chairman in his witness evidence instead of maintaining objectivity. This included pursuing the idea of a toxic work environment despite it not being a part of the initial investigation mandate;
• She failed to critically and impartially analyze some of the impugned emails, including Commissioner Shoan’s request to read the emails in the context of ongoing governance issues at the CRTC;
• She seemed to accept the Complainant’s evidence entirely regarding the tone of the emails, while discounting Commissioner Shoan’s explanation and concerns with the same emails.  Justice Zinn also found that the investigator’s interpretation and speculation as to the potential results of a number of different email chains to be unreasonable;
• She appeared to make a credibility finding despite stating that she would not do so;
• She changed some of the wording in the conclusion of her report; whereas in the body of the report a witness described the impugned email as being “overly insulting” and “offensive”, in the conclusion, the investigator writes that the same witness found it “terribly insulting and atrocious”; and
• She made remarks that Commissioner Shoan’s statement may violate the Canadian Human Rights Act, despite such a finding being outside the scope of the investigation. Justice Zinn described this as being without merit, baseless, and speculative.

Justice Zinn also expressed his concerns that when the investigator responded to the allegations of partiality put to her by Commissioner Shoan, she did not approach the witnesses and ask them how they had formed the view that she had a closed mind. Lastly, he was clear that the investigator’s destruction of her notes prior to the judicial review appeal period was unreasonable. He stated that “given the potential for future application for judicial review of the report’s conclusions, one would reasonably expect that an experienced and impartial investigator would retain his or her notes, correspondence and audio recordings until well after the time limit for such an application”, adding that in this case, he was not prepared to draw an adverse inference from the destruction of these records, but in another case it might be justified.

Justice Zinn ordered that the decision of the Chairman to accept the results of the investigation report be set aside. He also ordered the payment of $30,000 in costs, inclusive of disbursements, to Shoan

Takeaways for Investigators

As seasoned investigators can attest, it can be quite difficult to keep the same standard of an open mind during the full course of a workplace investigation. This is especially the case during long investigations with many witnesses, issues or incidents.

As the evidence comes in during an investigation and adds another piece to the puzzle, it can be hard to resist filling in the empty spots with an explanation that seems to makes sense at the time.

The Shoan decision provides investigators with the incentive to fight the urge to make any conclusions until every piece of relevant information from all appropriate witnesses has been gathered. The decision also makes it clear that investigators need to stick tightly to the mandate of the investigation from day one until the report is finalized. To continue with the jigsaw puzzle metaphor from above, this means doing the edge pieces first.

As Shoan has shown us, the risk to workplace investigators of not keeping an open mind and sticking within the boundaries is huge. It would be exceptionally difficult to re-do an investigation that has been declared unreasonable by a judge; it is always better to get it right the first time.

Jennifer White

About the Author: Ottawa employment lawyer Jennifer White conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, and other problematic workplace behaviour. Jennifer also provides workplace investigation and human rights training to staff at all levels.

[1] A copy of the policy can be found here: https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=26041

[2] The CRTC guidelines are not available publicly.  The prescribed duties were detailed in paragraph 5 of Justice Zinn’s decision.

[3] Justice Zinn refers to the fact that multiple investigators were used, but that the report failed to disclose which investigator completed which interview (paragraph 6 of the decision).

[4] It is unclear from the decision whether the “competency” profile in the standing offer list is linked to the requirements under Section 20.9 of Part XX of the Occupational Health and Safety Regulations of the Canada Labour Code (the “Regulations”) which requires that a “competent person” investigate workplace violence.  Section 20.9(1) defines this person as someone who is “impartial and seen to be impartial, has knowledge, training and expertise related to workplace violence, and has knowledge of the relevant legislation.”

[5] Paragraph 38 of the decision.

[6] Paragraph 37 of the decision

[7] Paragraph 49 of the decision

[8] Paragraph 56 of the decision

[9] The details of the other witnesses’ comments were contained in Commissioner Shoan’s affidavit. Paragraphs 58 – 62 of the decision.

[10] Paragraph 78 of the decision

[11] Paragraph 92 of the decision.