While you’re here, you may wish to attend one of our upcoming workshops:
Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
A decision out of the Federal Court of Appeal this month has provided a reminder for investigators that their approach, their reports and the eventual findings must be reasonable in order to pass judicial scrutiny.
The decision, Emerence Miakanda-Batsika v. Bell Canada 2016 FCA 278, is an endorsement of a previous Federal Court decision (2014 FC 840), that in turn had upheld a decision of the Canadian Human Rights Commission (CHRC).
Ms. Miakanda-Batsika had complained to the CHRC about her employer, Bell Canada, that she had been subject to discrimination and harassment over a number of years. Specifically, she alleged that 3 separate supervisors had denied her promotions, excluded her from a clique of employees, had failed to recognize a certification, had given undue scrutiny to her credentials, had yelled at her, and shown other disrespectful behaviour. Her allegation was that this harassment and discrimination was on the basis of race, national or ethnic origin and colour.
An investigator from the CHRC was assigned to the file, and the investigator sought specific information from both Ms. Miakanda- Batsika and the respondent employer, Bell Canada. Ms. Miakanda-Batsika missed the deadline for submitting the documents, and then submitted 325 pages of documents to the CHRC, without explaining the significance of the documents. Eventually, Ms. Miakanda-Batsika was interviewed by the investigator.
The CHRC investigator drafted her report and recommended that the CHRC dismiss the complaint as the evidence gathered did not support the allegations. The investigator also concluded that that there was no need for further inquiry. The investigator remarked that there was insufficient evidence or details provided to substantiate the claims, and concluded that the harassment likely did not occur.
The investigation report was sent to the complainant and respondent with an invitation to comment on the report directly to the CHRC before the CHRC made a final decision on whether to send the matter on to the Tribunal. The CHRC received comments from the respondent, Bell Canada, but not from Ms. Miakanda-Batsika. The CHRC’s decision was to dismiss the complaint from proceeding any further, just as the investigator had recommended.
Ms. Miakanda-Batsika appealed the CHRC decision to the Federal Court and alleged that she had not received procedural fairness. She alleged that there had been communication issues during her interview with the investigator and that she had never been asked to provide names of witnesses who could support her allegations.
The Federal Court concluded that “even if she was prevented from providing names of witnesses during her interview with the investigator, she had the opportunity to indicate in comments after the issuance of the report any information that she felt were necessary for the CHRC to have, including the names of witnesses.” The decision referred to the fact that Ms. Miakanda-Batsika’s counsel had indicated in correspondence with the investigator that there were witnesses; however the witnesses did not wish to be identified. At the time of the request for judicial review, Ms. Miakanda-Batsika changed her approach and provided the names of the witnesses, however the Federal Court concluded that the now-named witnesses would not have provided evidence that would have changed the investigator’s recommendation.
The Federal Court concluded that the investigator’s report was “thorough and the analysis of the information and documents gathered entirely reasonable. The investigator adequately identified the various allegations made by [Ms. Miakanda-Batsika], and indicated the lack of information and details to support the allegation.”
Federal Court of Appeal
Ms. Miakanda-Batsika asked the Federal Court of Appeal to review the Federal Court’s finding on the basis that she had not received procedural fairness, and that the Commission’s decision was unreasonable.
The Appeal Court determined that the lower court had not made a reviewable error in its decision. Justice Marc Nadon, in writing for the Court, agreed that the appropriate standard of review with regard to the issue of procedural fairness was correctness, and that with regard to the CHRC’s determination of the facts and the sufficiency of the evidence before it (i.e. the investigator’s report), the standard was one of reasonableness.
Justice Nadon determined that the investigator’s conclusion that there was no evidence to support the complaint was reasonable. He stated that the investigator had examined all of the relevant documents, had interviewed Ms. Miakanda-Batsika, as well as two of the three named respondents, and the author of a previous harassment investigation report that had been done internally.
Justice Nadon referenced the guidance for reasonableness that was provided by the Supreme Court of Canada in Dunsmuir v. New Brunswick  1 S.C.R. 190 :
“Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility with the decision-making process. But it is also concerned with whether the decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.” 
Justice Nadon concluded that the CHRC’s decision to dismiss Ms. Miakanda-Batsika’s complaint based on the finding of the (reasonable) investigation report was clearly “within the range of possible acceptable outcomes which are defensible in respect of the facts and the law.” Her appeal was dismissed.
What does this mean for investigators?
As a workplace investigator, I could relate to the facts of this case. In particular, it reminded me of how sometimes the “people” in the “people business” of workplace investigations are one of the trickiest parts to manage. Often, as was the case with the CHRC investigation, parties and witnesses provide incomplete information during the course of the investigation. Sometimes witnesses are certain that other people were around during key events, but cannot remember who they were. And sometimes witnesses completely forget that other people were in the room during an incident. Yes, sometimes this is selective memory, but many times it is not; I have learned over the years that it is rare to discover a witness who remembers exactly what was said, by whom, and whether or not the painting on the wall was a Monet or a Renoir.
Justice Nadon stated that the expectation is not that the investigation is perfect, rather that it is done reasonably and with an eye to the Supreme Court’s guidance in Dunsmuir. In this particular case, “without [the] identification of witnesses, the investigator could hardly be faulted for not interviewing them.”  Justice Nadon decided that there was no need to overturn the decision at the lower court in which the judge there had indicated that “he was satisfied that the investigator had properly investigated the appellant’s complaint and that she had carefully analyzed all of the information submitted to her” (italics added). 
Even the most skilled and experienced investigators run into difficult parties and witnesses that throw a wrench into a well-planned investigation. In my own experience, there is rarely an investigation that follows a textbook pattern with all the players being identifiable, willing, forthcoming and available. The key to success in these situations is to adjust the game plan slightly, see if there is another witness who can provide equally compelling evidence, and if not, do the best that you can with the information that you have.
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.
 Paragraph 47 of Dunsmuir
 Paragraph 24 of the Federal Court decision
 Paragraph 5 of the Federal Court of Appeal decision