Workplace investigations live at the intersection of practical judgment and legal standards. Investigators must decide who to interview, what evidence to pursue, and how to structure the process, all while ensuring procedural fairness. Together, the Federal Court and the Federal Court of Appeal in 2023 FC 528 and 2024 FCA 105 provided a somewhat clear roadmap: investigators have wide latitude, but their discretion is bounded by fairness obligations that are concrete and contextual, not rigid checklists.

1. No Procedural Unfairness: Fairness Is About Opportunity, Not Perfection

The Federal Court emphasized that internal grievance and investigation processes sit at the low end of the procedural fairness spectrum. The core requirements are that parties understand the case they must meet and are given a meaningful chance to respond. The decisions acknowledged that the complainant had multiple opportunities to present evidence, meet with a labour relations advisor, and comment on draft factual summaries. That was enough. Fairness does not demand that investigators “turn over every stone” or conduct interviews exactly as a party prefers, provided the investigation is competent, neutral, and reasonably thorough.

The Court of Appeal confirmed this approach, finding that the complaint and grievance processes were “participatory, open and fair”. It agreed that the applicant knew the case she had to meet and had full opportunity to present her position, thereby endorsing the Federal Court’s fairness assessment.

2. The Final Level Decision Was Reasonable: Vavilov’s Deferential Lens

On judicial review, reasonableness is the standard for the merits. The Federal Court assessed whether the CBSA’s final grievance decision was transparent, intelligible, and justified in light of the facts and law. Importantly, it treated the grievance reply, grievance précis, and the external investigation reports together as the decision’s reasons, consistent with established case law on adopted reports.

The Court of Appeal agreed, expressly stating that the reasons for the grievance decision are set out in the decision itself, the two investigation reports, and the précis, and that read together they disclose the key bases for the decision. In short, the Court of Appeal found the grievance decision to be “justified and reasonable.”

3. Reprisal Allegation Not Strong Enough: Materiality Matters

A reprisal allegation becomes legally significant or “strong enough” when it is clearly connected to the core issues of the investigation or grievance and has the potential to affect procedural fairness or the outcome. Courts look for reprisals that directly undermine the complainant’s ability to participate meaningfully in the process. For example, actions that intimidate witnesses, restrict access to evidence, taint neutrality, or penalize the employee because they filed the complaint. To matter, the reprisal must be properly framed, supported with specific facts, and raised within a process that actually has the mandate to adjudicate reprisals.

In the decisions, the reprisal allegation did not meet these thresholds. It was peripheral, insufficiently developed, not shown to affect the fairness of the harassment investigation or grievance review, and better addressed through other statutory processes. Because it neither compromised participation nor tainted neutrality, the Court held that the omission of a detailed reprisal analysis in the final grievance decision was not significant enough to justify judicial intervention.

4. No Evidence of Investigator Bias: Neutrality Is Demonstrated Through Method

Allegations of investigator bias failed at both levels. The Federal Court found that being retained and paid by the employer did not, by itself, impugn neutrality. Nor did choices like telephone interviews, providing questions in advance, or destroying an interview audio recording after notes were approved by counsel. The touchstone is whether the investigator approached the case with a closed mind. The record supported neutrality; the reports reflected open minded assessment, and the complainant’s comments were considered (with several incorporated).

The Court of Appeal’s endorsement of the overall fairness and reasonableness necessarily confirms there was no bias undermining the process or outcome.

5. Bottom Line

These decisions delivered a consistent message: investigator discretion is broad, and courts won’t micromanage investigative choices. What they will scrutinize is whether the process was competent, coherent, and fair, and whether the final decision is reasonable when read with the investigation materials. If you document your reasoning, focus on material evidence and issues, and maintain open minded neutrality, your findings are far more likely to withstand both judicial review and appeal.

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