Workplace investigations are meant to uncover facts impartially, ensuring fairness for all parties involved. Although the employer is responsible for the work environment, the allegations usually turn towards employees or employees-customers/users. The common-interest of all participants and the employer is a safe and healthy workplace environment. Basically, the employer is delegated a public-administration decision-making power to review behaviour and qualify it as harassment or not, and to make proportionate and relevant decisions based on the facts found. This brings procedural fairness to the spotlight, which includes neutrality.    

But what happens when the investigator is also retained as a lawyer, either as external counsel or serving as in-house counsel?

Two recent decisions, Carreau v. Canada (Attorney General), 2025 FC 1537 and Toronto Metropolitan Faculty Association v. Toronto Metropolitan University, 2024 CanLII 109523, offer critical insights into why this practice can undermine procedural fairness and create significant legal risk.

1. The Core Tension: Advocacy vs. Impartiality

Lawyers owe their clients duties of loyalty, confidentiality, and zealous advocacy. These obligations are fundamental to the solicitor-client relationship. However, workplace investigators must be neutral, independent, and objective. These two sets of responsibilities are not just different—they are antithetical.

As the arbitrator in the TMU case put it: “The responsibilities of a solicitor to their client are antithetical to the impartial, unbiased, independent and objective role required in an investigation.” This statement captures the heart of the problem: a lawyer cannot simultaneously serve as an advocate and a neutral fact-finder without creating at least the appearance of bias, if not actual bias.

2. Case 1: Carreau

Imagine this: A workplace harassment complaint lands on the desk of the Courts Administration Service (CAS). The law is clear, under the Work Place Harassment and Violence Prevention Regulations, CAS must act. So, they do what many organizations would: they bring in a third-party investigator to ensure neutrality and compliance.

But behind the scenes, CAS’s in-house counsel is also involved. Not in the interviews, not in the evidence review, but offering procedural guidance. Timelines, compliance checks, making sure the process doesn’t derail. To CAS, this seems reasonable. To the complainant? Not so much.

The applicant sees red flags:

• Conflict of interest: Isn’t the investigator too close to CAS?
• Apprehension of bias: How impartial can someone be if they’re talking to CAS’s lawyer?
• Closed-mindedness: Was the outcome predetermined?

The case goes to Federal Court. The judge looks closely: Was the investigator independent? Were those lawyer interactions influencing the substance of the investigation? The answer: No. The communications were procedural, not substantive. The investigator was qualified and impartial. No evidence of bias, no sign of a closed mind.

The Court dismisses the challenge. But in doing so, it sends a message: In-house counsel can play a role, but only at the edges. They can guide the process, not shape the findings. They can advise on compliance, not on conclusions. And every step must be transparent and documented to withstand scrutiny.

Lesson learned: The line between legal advice and investigative influence is thin. Cross it, and you risk fairness.

3. Case 2. TMU Arbitration: When Lawyers Wear Two Hats

Picture this: A university faces a workplace complaint. To show diligence, it hires an investigator. But not just any investigator, a lawyer. And here’s the twist: that same lawyer is also acting as legal counsel for the university.

On paper, the arrangement looks efficient. One professional, two roles. But the Faculty Association sees something else: a structural conflict. The retainer agreements spell it out, legal services, solicitor-client obligations, Law Society rules. This isn’t just an investigator; it’s the university’s lawyer.

The case goes before an arbitrator. The question: Can someone bound by duties of loyalty and advocacy also be impartial, unbiased, and independent? The arbitrator doesn’t hesitate and spells it out: “The responsibilities of a solicitor to their client are antithetical to the impartial, unbiased, independent and objective role required in an investigation.”

Why? Well, because a lawyer’s first duty is to their client. They protect, they advocate, they strategize. An investigator’s duty is to the facts, neutral, detached, fair. These roles pull in opposite directions. Even if the lawyer swears to keep the hats separate, the appearance of bias persists. And in workplace investigations, perception matters as much as reality.

The arbitrator rules: TMU’s model fails the fairness test. Investigations must be independent. A solicitor-client relationship makes that impossible.

Lesson learned: Efficiency isn’t worth the cost of credibility. When lawyers act as lawyers AND investigators, the process is compromised before it begins.

4. Why This Matters for Lawyers, Employers, Unions, and HR Professionals

• ‍Legal Risk. Investigations tainted by perceived bias can lead to, grievances and arbitration challenges, judicial reviews or damages for breach of procedural fairness.‍
• Reputational Damage. Employees expect investigations to be fair. If they perceive the investigator as aligned with management, trust erodes, impacting morale and organizational culture.‍
• Regulatory Compliance. Under laws like the Canada Labour Code and provincial health and safety statutes, employers must ensure investigations are neutral and independent. Failure to do so can result in compliance violations.

5. Best Practices

What may be permissible:

• Procedural Guidance Only: In-house counsel may advise on process, timelines, and compliance requirements.
• Clear Boundaries: Document that counsel is not directing findings or influencing evidence assessment.
• Transparency: Keep records of communications to demonstrate independence.

What may create Risk:

• Dual Roles: Retaining lawyers as investigators while maintaining a solicitor-client relationship.
• Substantive Influence: Counsel shaping findings or strategy during the investigation.
• Ambiguous Retainers: Agreements that reference legal services or advocacy duties.

Carreau suggested that limited, procedural involvement by in-house counsel can be acceptable if independence is preserved. TMU suggested that lawyers acting as an investigator while serving as legal counsel create an inherent conflict and apprehension of bias.

6. Conclusion

Workplace investigations demand neutrality. Lawyers, whether retained as lawyers externally or serving as in-house counsel, are bound by duties that conflict with this requirement. Employers should avoid using lawyers as both lawyers and investigators. It’s one thing or the other but not both. Consider defining clear roles for legal counsel (advisory, not investigative, or investigative not advisory).

By learning from Carreau and TMU, organizations can design investigation processes that uphold procedural fairness and minimize legal risk when deciding who is the competent and independent investigator to be appointed.