Procedural Fairness in Workplace Investigations: It’s More Rigorous Than You Might Think
Most HR professionals know that a workplace investigation has to be fair. The harder question is what “fair” actually requires in practice.
Traditionally, we have tended to think about procedural fairness in workplace investigations in fairly straightforward terms. The respondent needs to know the allegations against them and have a reasonable opportunity to respond. If there is important evidence that contradicts their account, they may need an opportunity to address that as well.
Those requirements have not changed. But recent decisions from the Federal Court and the Nova Scotia Supreme Court are giving us considerably more guidance about what procedural fairness can require in a harassment investigation.
And, in some cases, it is more rigorous than you might expect.
At Resonance HR Law, this developing case law has reinforced something that has always been important to our approach: procedural fairness is not one step in an investigation. It needs to be considered throughout the investigation as the evidence develops.
The federal cases have changed the landscape
The Federal Court’s decision in Marentette v. Canada (Attorney General), 2024 FC 676, is particularly important. In that case, the complainant was not provided with the respondents’ replies or given an opportunity to respond to evidence obtained during the investigation. The investigator also considered disciplinary information concerning the complainant without giving him an opportunity to address it. The Court found the process procedurally unfair.
One of the important lessons from Marentette is that the right to know and respond can flow both ways. We often think about procedural fairness primarily from the respondent’s perspective because the respondent is the person answering the allegations. But a complainant may also need an opportunity to respond to evidence that contradicts or undermines their account.
Take a fairly simple example. A complainant says they reported an incident to their manager in March. When the manager is interviewed, they say that conversation never happened and that they first heard about the issue in June. An investigator could simply weigh the two accounts and decide which one they prefer. But Marentette suggests there may be another step to consider: if the investigator may rely on the manager’s evidence, has the complainant had a meaningful opportunity to address it?
Perhaps the complainant has an email confirming the March conversation. Perhaps someone else was present. Perhaps they were mistaken about the date. Or perhaps they have nothing further to add.
The point is that before relying on material evidence against a party’s account, the investigator needs to consider whether fairness requires giving that person an opportunity to address it.
Where are these requirements coming from?
The statutory obligation to investigate
This is one of the more interesting aspects of the federal cases. The federal Work Place Harassment and Violence Prevention Regulations regulate workplace harassment and violence investigations, but they do not set out a detailed evidentiary process for investigators to follow. They do not prescribe every disclosure that must occur or every opportunity a party must be given to respond.
Yet the Federal Court has required procedural protections that go beyond the express wording of the Regulations. The Court is applying broader principles of procedural fairness.
That raises an obvious question for provincially regulated employers.
The federal cases arose under the Canada Labour Code regime, so we should be careful about assuming that every aspect of those decisions automatically applies to every provincially regulated workplace. At the same time, it would be equally risky to assume that they have nothing to teach us outside the federal context, particularly where the procedural protections being discussed arise from broader principles of fairness rather than a detailed procedure set out in the legislation.
And we now have provincial case law pointing in a similar direction.
Finkle: notice and an interview may not be enough
In Finkle v. Nova Scotia Health Authority, 2025 NSSC 373, two specialist physicians were investigated under Nova Scotia Health’s Respectful Workplace Policy. They received notice of the complaints. They received summaries of the allegations and had an opportunity to respond. At first glance, that sounds like a reasonably fair process. However, the Court found that it was not enough.
The Court concluded that the circumstances called for a moderate to high degree of procedural fairness at the investigation stage, with an even higher degree of fairness at the subsequent decision-making stage. One of the concerns was that the physicians did not have an opportunity to provide additional or clarifying information after witness interviews had taken place and documentary evidence had been gathered. Because of this, the decisions were ultimately quashed.
That is an important reminder for employers and investigators. Notice, an interview, and an opportunity to respond are not necessarily the end of the procedural fairness analysis. What is required will depend on the circumstances and on how the evidence develops during the investigation.
What does this look like in a Resonance investigation?
This is one area where our investigation process may look a little different from what some organizations have experienced. We do not view an investigation as a straight line from complainant, to respondent, to witnesses, to report. Once the parties and witnesses have been interviewed and the relevant documents reviewed, we step back and look at the evidentiary record as a whole before making findings. Part of that review is asking whether anyone needs a further opportunity to respond.
If a witness has provided material evidence that undermines the complainant’s account, we consider whether the complainant needs to address it. If evidence materially affects the respondent’s account, we ask the same question.
If the response introduces genuinely new and important information, we then consider whether fairness requires putting that information back to the other party. Sometimes that means another interview. Sometimes a written response is enough. Sometimes it is appropriate to provide a summary of the relevant evidence rather than the underlying document or witness statement. And sometimes nothing further is required. We use our professional judgement to determine the appropriate next step.
What matters is that we do not assume procedural fairness was completed when the respondent was interviewed. We continue to assess it until we are satisfied that the evidentiary record is complete and the parties have had a fair opportunity to address the material evidence that may affect our findings.
But the parties do not get to rebut our findings
More rigorous procedural fairness does not mean an investigation has to become endless.
The Federal Court’s more recent decision in Carreau v. Canada (Attorney General), 2025 FC 1537, is helpful on this point. Carreau draws an important distinction between giving a party an opportunity to respond to the evidence and giving that party an opportunity to challenge the investigator’s findings.
The Court concluded that the respondent had received a full and fair opportunity to meet the case against her. Procedural fairness did not entitle her to review the investigator’s ultimate findings, conclusions and recommendations and then try to persuade the investigator to change them. The Court also recognized the importance of the investigator’s independence once the evidentiary process is complete. That is consistent with how we approach our work at Resonance.
We give parties a meaningful opportunity to respond to the evidence. We do not give them our draft report to rebut. Once we are satisfied that the parties have had a fair opportunity to address the material evidence, the evidentiary phase ends. It is then our job, independently, to assess the evidence, resolve factual conflicts, make credibility findings where necessary, apply the relevant legislation or policy, and reach our conclusions.
What should you ask your investigator?
Taken together, Marentette, Finkle and Carreau give employers a much better sense of where procedural fairness in workplace investigations is heading. Marentette reminds us that fairness can flow both ways. Finkle reminds us that the degree of fairness required depends on the circumstances and that simply providing notice, conducting interviews, and obtaining responses may not always be enough. And Carreau helps identify the other boundary. Parties need a fair opportunity to respond to the evidence, but that does not necessarily mean they are entitled to review and challenge the investigator’s conclusions before the report is finalized.
For us, the principle is fairly simple: Be rigorous about fairness before making findings. Be independent when making them.
There is also a practical question employers can ask when retaining an investigator: “What happens after you interview the witnesses?” If the answer is essentially, “I assess the evidence and write my report,” it is worth asking a few more questions:
What happens if a witness gives evidence that contradicts the complainant?
What happens if new evidence undermines the respondent’s account?
Does the affected party get an opportunity to address it?
What happens if their response raises something new?
How does the investigator decide when everyone has had a fair opportunity to respond and it is time to make findings?
Those questions matter because a thorough investigation and a procedurally fair investigation are not necessarily the same thing.
At Resonance HR Law, we build those questions into the investigation process rather than asking them at the end. The objective is not simply to complete an investigation. It is to conduct a fair process, reach reliable findings, and provide the organization with a result it can confidently rely on.
How confident are you in your investigation process?
A thorough investigation is not always a fair one. Resonance HR Law helps employers across Atlantic Canada review their investigation processes and conduct independent workplace investigations, with procedural fairness considered at every stage.
This article is for general informational purposes only and does not constitute legal advice. Employment law is jurisdiction-specific and changes frequently. Contact Resonance HR Law for advice tailored to your circumstances.