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Appeal court provides guidance on workplace investigations

A controversial lower-court ruling that ordered a Montreal lawyer to pay moral damages to a college teacher for pain and suffering after an investigation she had headed into psychological harassment complaints breached the duty of procedural fairness was overturned by the Quebec Court of Appeal in a precedent-setting ruling that provides guidance on workplace investigations.

In a closely-watched ruling by the business and legal community, the Quebec Court of Appeal held that workplace investigations are “intrinsically linked to an employer’s exercise of power in matters of management and discipline,” and therefore do not have to abide by the same procedural fairness standards applied in administrative law.

“The lower court ruling raised the rules of procedural fairness too high, akin to the standards applied in administrative law, which would have increased the burden of responsibility on investigators and the investigative process conducted internally by the majority of public and private organizations,” noted Jean Marois, head of the Montreal dispute prevention and resolution law firm Professionals in dispute resolution S.A. “The Quebec Court of Appeal issued a very important decision because it brought the standards back to a perfectly reasonable level.”

The case dates back to 2007 when David Zinga Ditomene, a college teacher at the Cegep de Sherbrooke from 1993 until 2007, was the subject of a psychological harassment complaint made by two Cegep employees. The college retained the services of Louise Boulanger, a Montreal lawyer who specialises in psychological harassment cases, as an outside investigator to head a three-person committee to look into the complaint. During the investigation, Ditomene became concerned that Boulanger was not adhering to the Cegep’s harassment policy and refused to participate in the process. Boulanger nevertheless proceeded with the investigation, and reported its findings to the college. The Cegep fired Ditomene based on the findings of the investigation. Ditomene then sued Boulanger, and partially won the case before Court of Quebec Justice Claude Laporte.

In a ruling that “shocked” and dismayed investigators in the province, the lower court ruling found that Boulanger had breached her duty to follow procedural fairness. By failing to provide Ditomene with a full copy of the complaints made against him, the lower court held that Boulanger deprived him of the opportunity to review the complaint against him in its entirety, which was in breach with the employer’s harassment policy and the principle of general fairness. The lower court also found that Boulanger failed to provide Ditomene with the testimonies of the complainants or witnesses, which affected his ability to know the allegations against him. Justice Laporte also held that Boulanger had allowed a member of the investigation team to be replaced while investigation was ongoing, thereby violating the principle that she or he “who hears must decide.” Finally, the lower court ruling criticized Boulanger for summoning Ditomene to meetings with insufficient notice to allow Ditomene to prepare and defend himself adequately. While the lower court was not convinced that the investigation was the cause of Ditomene’s termination, as he would have been fired even if the investigation had been fair, Justice Laporte nonetheless awarded Ditomene $3,000 for the anxiety and stress he suffered as a result of the faulty investigation.

“The ruling by Justice Laporte shocked a lot of people,” remarked Marie-France Chabot, a Quebec City lawyer who has conducted over 250 workplace investigations over a 12-year span. “It would have threatened the ability to conduct investigations into psychological harassment. If complainants know that the person accused of psychological harassment would receive a full copy of the complaints against him, including the testimonies of the complainants and witnesses, people would think twice before lodging a complaint. Investigators would have been affected by this ruling. So too would be employers as they would have a much more difficult time to fulfill their legal obligations.”

In an 11-page unanimous “well-reasoned” ruling in Ditomene v. Boulanger 2014 QCCA 2108 that legal observers say it will take time to fully appreciate because it is replete with “nuances,” the Quebec Court of Appeal completely overturned the lower court ruling, and held that Boulanger did not in any way breach her duty to follow procedural fairness. Workplace investigations into psychological harassment should not be held to the same procedural fairness standards as disciplinary hearings held by a professional corporation nor should they be viewed as adversarial in nature as is the case with administrative or judicial tribunals, said the appeal court. Individuals therefore accused of psychological harassment in the workplace therefore should not expect to receive a full copy of the complaints made against them but instead will have to make do with redacted copies. While pointing out that an “allegation of psychological harassment is not a trivial matter,” the appeal court noted that an investigation should be conducted diligently and within a reasonable timeframe. “It should be reminded that an employee convened to respond to such an allegation during an employer’s investigation is not preparing to appear before a court of justice and cannot demand weeks nor even days to reflect and prepare,” said Justice Marie-France Bich, adding that complainants too have rights, including the right to have their complaint be heard diligently.

“The appeal court held that while it is important to treat people accused of being harassers fairly, it does not mean that an internal investigation should be turn into an adversarial process as if it was before the courts of justice, encumbered with rules of procedural fairness,” said Chabot. “That is the crux of the ruling.”

Moreover, investigators examining psychological harassment complaints should be given sufficient latitude to conduct their examinations, so long as they act in a reasonable manner, added the appeal court. “The court is saying that employer policies regarding psychological harassment cannot be interpreted literally,” said Marie-Josée Bélainsky, a Montreal lawyer with the Professional Liability Insurance Fund of the Barreau du Québec who successfully argued the case before the appellate court. “One must look at the global context, and allow investigators leeway to interpret it in a reasonable manner.”

However, warns the appeal court, workplace investigations are still subject to the general rules of civil liability. Employers and investigators can be held liable, either contractually or non-contractually, if a flawed investigation lead to a fault and the fault lead to a harm. Though the appeal court does not explicitly spell out what factors it will take into consideration to determine when employers or investigators can be held liable, the Quebec Institute of Mediators and Arbitrators has recently established an ad hoc committee to develop standards for investigators to follow when conducting inquiries into psychological harassment. “The appeal court does not say when an investigator can be held liable but it does provide good indications,” said Chabot. “We are now in the midst of establishing a consensus within the community to develop generally accepted norms when conducting investigations.”

In light of the ruling, many employers too will have to revise their psychological harassment policies, said Chabot. “Employers will have to write policies that gives leeway to investigators it hires to conduct inquiries so that it can act in the best interests of everybody,” said Chabot. “That means they will have to be give investigators latitude.”

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