As a workplace investigator, maintaining neutrality and avoiding bias is always top of mind. I found a recent Federal Court case, Whitelaw v. Canada (Attorney General),1 to be helpful, because it provides a great summary of the case law in this area, and insight into what the Court evaluates when dealing with allegations of procedural unfairness in investigations. While the genesis of the complaint was not a workplace situation (it was a traffic stop), the Canadian Human Rights Commission's ("CHRC") investigation and the principles outlined in the Court's decision are applicable to workplace investigators. I will start by summarizing the analysis of the case, then go on to discuss the key takeaways.
The case
The applicant sought judicial review of the CHRC's investigation and dismissal of her complaint. The applicant raised issues of procedural fairness, suggesting that the investigator was biased. Specifically, she alleged that the investigator:
- did not interview witnesses that she suggested
- was "closed minded," and appeared to have made a predetermination
- did not ask sufficient questions during her interview
- did not provide her with certain evidence relied upon
The Court found that the investigation was not procedurally unfair and that there was no evidence of bias. In response to the applicant's concerns of bias (outlined above), the Court noted that:
- the investigator's report indicated that the applicant said that the witnesses had no direct personal knowledge, and the Court, therefore, supported the investigator's decision not to speak to the witnesses
- the assertions of bias were speculative; the Court noted that a suspicion of bias alone is not enough and the threshold for bias is high2
- in response to concerns about the sufficiency of questions asked, "investigators have a wide latitude [...]; they are not required to turn over every stone nor can they be held to a standard of perfection"
- it is not unfair for an investigator to not share all materials that pass through their hands during an investigation
The Court also considered general principles when making its decision. For example, the Court noted that a reviewing court must ask whether a fair and just process was followed, and consider, "did the applicant know the case to meet and have a full and fair chance to respond?" Further, the Court noted that administrative decision makers are not expected to respond to all arguments or lines of possible analysis, but they are expected to contend with central arguments and issues.
Key takeaways
The Court did not address each concern and piece of evidence in detail,3 which left some room for interpretation – but the Court did reflect on general principles, considered the crux of the case, and noted steps that the investigator took that reduced any perception of bias.
Overall, there are several practical steps we can takeaway from this case to combat perceptions of bias in investigations. First, when in doubt, ask yourself, what am I investigating? What is the crux of the case, and did the parties have an opportunity to respond? It's easy to get deep into the weeds of a case but circling back to the core issues can help to keep us on track. Second, to demonstrate our consideration of issues, we should document our decisions regarding process in a written report, also making sure to include steps that we choose not to take. In Whitelaw v. Canada, the Court relied on the investigator's note in the report about why certain witnesses were not interviewed. Third, we should demonstrate our neutrality by treating parties in a similar manner, when possible, and documenting when we do so. The Court noted that the investigator similarly did not interview all witnesses suggested by either party. Fourth, we can excerpt relevant documentary evidence in the report, so that any reader (in this case, the Court) can have a better understanding of what was considered and why decisions were made.
No two cases will be the same and what is required for each may vary. In fact, the Court in Whitelaw v. Canada stated that the "Supreme Court of Canada observes [that] the duty of procedural fairness 'is "eminently variable", inherently flexible and context-specific'" – there's no one right answer but we can consider general principles, the central elements of a case, and take practical steps to demonstrate our neutrality throughout the process.
Footnotes
1. 2024 FC 1115.
2. The Court noted that the test for a reasonable apprehension of bias is, "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude? Would [they] think it is more likely than not that the decision-maker whether consciously or unconsciously would not decide fairly?"
3. Judicial review is not an appeal to determine if they were correct, but to assess whether the CHRC's reasons are logical and rational.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.