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How not to conduct an investigation…yet another example

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The number of decisions dealing with how not to conduct workplace investigations continues to grow. One of these decisions, Ditomene v Boulanger, 2013 QCCQ 842, comes from the Quebec Court and while the case was decided under the Civil Code of Quebec, it provides a laundry list of flaws that should be avoided in a procedurally fair investigation.

Mr. Ditomene was a teacher with CEGEP from 1993 until 2007. In 2007, Mr. Ditomene was the subject of a psychological harassment complaint made by two employees at the CEGEP. The CEGEP retained Ms. Boulanger as an external investigator to look into the complaint. During the investigation, Mr. Ditomene became concerned that Ms. Boulanger was not adhering to the CEGEP’s harassment policy, and refused to participate in the process.

Nevertheless, Ms. Boulanger proceeded with the investigation and reported its findings to the CEGEP. The CEGEP, relying on the results of the investigation, terminated Mr. Ditomene’s employment. Unhappy with the result and the investigation process, Mr. Ditomene took the position that Ms. Boulanger was negligent in the manner in which she investigated the complaint, and sued her for causing him harm.

The Quebec Court held that Ms. Boulanger was under a duty to conduct a procedurally fair investigation for two reasons: (1) she was an external investigator for a public institution; and (2) her mandate required her to follow CEGEP’s harassment policy, which required investigations to be conducted in a fair manner.

In reviewing Mr. Boulanger’s investigation, the Court noted several violations of the duty of procedural fairness.

Two of these violations involved the lack of disclosure made to Mr. Ditomene. Ms. Boulanger provided a redacted version of the complaints to Mr. Ditomene. Ms. Boulanger had cut off several parts of the complaint, and in so doing had deprived Mr. Ditomene of the opportunity to review the complaint against him in its entirety. The Court found this partial disclosure to be contrary to the CEGEP’s harassment policy, and the general principle that a respondent ought to know the allegations against him.

Similarly, Mr. Ditomene was not given the benefit of the evidence of the complainants and witnesses, as Ms. Boulanger did not transmit that evidence. He was therefore deprived of the opportunity to effectively respond to all of the evidence.

The Court also found problematic the lack of notice Mr. Ditomene was provided when Ms. Boulanger was scheduling investigation meetings with him. Coupled with the limited disclosure he had received, the Court found the lack of notice to be a breach of a “fundamental aspect of procedural fairness” as Mr. Ditomene was not allowed enough time to digest and respond to the allegations.

Finally, and while not specifically pled by Mr. Ditomene as a deficiency, the Court found that the investigation report was problematic as it did not set out an analysis of the evidence, resulting in a lack of clarity with respect to how findings were made.

After setting out these deficiencies, the Court turned its mind to what damages Mr. Ditomene had suffered as a result of the faulty investigation. The Court was not convinced that the investigation was the cause for Mr. Ditomene’s termination, noting that he likely would have been dismissed in view of the evidence. Nevertheless, the Court awarded Mr. Ditomene $3,000 for the anxiety and stress he suffered as a result of the faulty investigation.

This decision has since been appealed to the Quebec Court of Appeal, but its findings are a reminder that investigations and investigators in the public sector will be scrutinized to ensure that they are procedurally fair to the parties. While public institutions may be held to higher standard of fairness when conducting workplace investigations, the deficiencies highlighted in this case may be a preview of the standard to come for private employers, and as such ensuring a procedurally fair process should be seen as a best practice for both employers and investigators going forward.

Janice Rubin and Parisa Nikfarjam