Canadian courts are designed to police legality, not to manage the lived reality of workplace safety. This distinction matters, especially in harassment, sexual harassment, and discrimination cases where organizations must act quickly to protect workers.  But the judicial review framework, with its narrow and technical focus on procedural legality, can inadvertently prioritize procedural details without context.  The result? Decisions that look impeccably, narrowly and technically “fair” on paper yet fail to recognize proportionality, safety realities, and the prevention mandate employers are legally required to fulfill to protect workers in the workplace.

And as the recent case, Finkle v Nova Scotia Health Authority, 2025 NSSC 373 shows, the unintended consequence may be the emergence of a two‑tier experience in harassment prevention, one where some respondents (especially regulated professionals) receive elevated fairness protections, while complainants and broader organizational safety duties receive comparatively little doctrinal space.

This isn’t because courts devalue harassment prevention.  It’s because judicial review, as currently structured, forces decision makers to look at only one part of the picture.  Workplace investigations are evolving, and our Judicial Reviews must evolve with them.

1. A System Built to Protect Legality, Not Safety

Under Dunsmuir, courts review whether a decision is justified, transparent, and intelligible, not whether the employer successfully balanced safety risks, trauma dynamics, and workplace realities.  The focus is structural: did the employer follow a fair process? Were the reasons coherent?

Similarly, Baker holds that procedural fairness is variable and scales up with the consequences to the person affected.  In workplace investigations, that frequently means the respondent, not the complainant.  If the respondent’s privileges, reputation, or career are at stake, the duty of fairness escalates, regardless of the organization's obligations to prevent harassment.

And F.H. v McDougall confirms there is only one civil standard of proof for civil and administrative matters, the balance of probabilities.  But courts often scrutinize process more intensely where reputational harm is possible, which functionally elevates the scrutiny on employers, even though the proof standard remains the same.

This doctrinal combination produces a narrow, technical lens.  It’s not hostile to harassment prevention, but it’s blind to it.

2. The NSHA Case: When Narrow Review Collides with Workplace Reality

The litigation involving the NSHA and two nephrologists is a textbook illustration of this dynamic. According to the reported facts, the Nova Scotia Supreme Court quashed harassment findings because the process did not meet the “higher duty of procedural fairness” owed when decisions may affect physicians’ professional standing and hospital privileges.  The fairness defects included:

• No disclosure of the actual written complaints to the respondents.
• Skipping required screening or informal resolution steps under the Respectful Workplace Policy.
• No opportunity to make submissions on potential sanctions.
• Interim measures (like shift changes) framed and executed in ways that appeared prejudicial rather than protective.

Before that, the Nova Scotia Court of Appeal ruled that NSHA’s actions had a “sufficiently public character” because the authority acts under statute and medical staff bylaws, which meant the matter fell squarely under public-law judicial review, again centering fairness for respondents rather than prevention duties.

The court’s role is legitimate.  But its narrow mandate, focusing heavily on fairness to respondents without contextualizing the issue, barely at all touching on the lived realities of harassment prevention, creates a serious practical imbalance.

3. Is This Creating a Two‑Tier System in Harassment Prevention?

In practice, the answer could be yes.  When regulated professionals are involved, physicians, lawyers, engineers, etc., the consequences of workplace findings may extend into licensing, privileges, or permanent records.  That triggers heightened fairness under Baker, amplified scrutiny under Dunsmuir, and public-law review under statutes and bylaws.

Meanwhile, complainants and coworkers operate under a different reality:

• Safety risks unfold in real time.
• Trauma dynamics affect reporting.
• Delay or procedural over‑caution can worsen harm.
• Interim measures are often essential, not optional.

Yet the reviewing court’s lens makes these safety and dignity interests doctrinally invisible.  And here is a few ideas on how a judicial review can unintentionally produce a two‑tier harassment system:

• Tier 1: Respondents with statutory/professional standing receive elevated fairness protections because courts center their risks without workplace context.
• Tier 2: Complainants and the broader workplace safety environment receive minimal recognition unless investigators deliberately record those realities.

This is a 21st Century structural blind spot in administrative law.  The consequences are real and impactful.  If investigative processes must be perfect to withstand JRs with the courts' evidenciary and procedural threshold, organizations may hesitate to take contextually relevant necessary protective actions, even when harassment or sexual-harassment risks are acute.  Over time, that narrow mandate can feed unsafe environments as an unintended consequence.

4. The Path Forward: Engineering Context into JR’s Mandates

The solution is not to abandon fairness.  Fairness is essential.  The solution is to engineer context into the record, so courts can see that the organization was balancing two legal duties:

• The duty to act fairly toward respondents; and
• The duty to prevent and address harassment and ensure workplace safety.

5. Conclusion: Fairness and Safety Are Not Opposites

Canadian judicial review isn’t trying to undermine harassment prevention, but unless investigations and court records make context structurally visible, the system’s narrow mandate can unintentionally produce dangerous outcomes.

We don’t need less fairness.  We need contextual fairness, fairness that coexists with safety, proportionality, and the realities of harassment prevention.  When organizations engineer that context directly into their investigative and court records, courts may be fully equipped to uphold decisions that are lawful, fair, and safety‑effective.  Otherwise, we risk a world where procedural precision is rewarded, and prevention is punished, and that is a two-tier system no one wants.

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