Employer’s Failure to Share: Not Fair

Written by Daniel Standing LL.B., Editor, First Reference Inc.

The recent case of the Federal Court of Canada, Chapman v Canada (Attorney General), 2019 FC 975 (CanLII) involved the issue of procedural fairness in the context of a disciplinary investigation. A complaint of wrongdoing was made against a high-ranking public servant who was not provided any particulars of the allegation. Due to a variety of factors, the Court determined that the employee had been denied an opportunity to fully respond to the allegations. As there had been a breach of procedural fairness, the Court ordered that the matter be remitted back to a different decision-maker.

Key facts

Melanie Chapman holds the position of Director of Investigation in the Office of the National Defence and Canadian Forces Ombudsman. On April 18, 2017, a senior employee from her office wrote a letter to the Assistant Deputy Minister – Review Services (“the ADM”) alleging eight separate incidents of wrongdoing and implicating Ms. Chapman in two of them. In his letter, the employee alleged that Ms. Chapman’s handling of internal discipline procedures against an individual named “AB” was reckless or wilfully blind and had a direct effect on AB’s suicide.

At the end of July, 2017, the ADM wrote to Ms. Chapman to advise her that he had received disclosure of wrongdoing under the Public Servants Disclosure Protection Act (“PSDPA”) and that an independent investigator would be appointed to do a preliminary assessment. No details of the allegations were provided to Ms. Chapman; she was simply told the allegation related to “Gross Mismanagement (disciplinary actions)”.

Later that fall, the ADM wrote to Ms. Chapman informing her that the preliminary investigation was complete and, as a result, a formal investigation would ensue. Ms. Chapman learned that she would be interviewed in early January, 2018. She wrote to the ADM, seeking disclosure about the substance of the allegations made against her so that she could prepare a response. The ADM’s response referred Ms. Chapman to his earlier brief description of the allegations; no further particulars were provided. The investigator interviewed twelve people before interviewing Ms. Chapman on March 28, 2018. The investigator completed her report in May, 2018, having concluded that Ms. Chapman’s “management of AB and her failure to provide accommodation constituted more than trivial wrongdoing or negligence,” and that her “conduct poses a serious threat to public confidence in the integrity of the public service.” As a result, it confirmed the allegation of “Gross Mismanagement (Discipline)” was founded under the PSDPA. The ADM then informed Ms. Chapman of the result, stating, “you were previously informed of the allegations and were provided with an opportunity to respond,” and that the Deputy Minister would take the required corrective action.

Reason for the application

Ms. Chapman applied to the court for a finding that she was denied procedural fairness in the investigation and in the decision-making process. She asked that the Court review and set aside the decision and remit it back to another decision-maker.

The Court’s analysis

The Court first determined that the appropriate standard of review was that of correctness, adopting its prior recent jurisprudence to that effect. It then turned its attention to an analysis of the procedural fairness owed to Ms. Chapman and a determination of whether the rights she was given were consistent with procedural fairness.

As with any case dealing with procedural fairness, the Court based its analysis on the framework established by the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC). Since the investigative process affected Ms. Chapman’s “rights’ privileges or interests,” her right to procedural fairness was triggered. The Court noted procedural fairness is a flexible concept, one that will vary depending on the facts of a particular situation within the context of the particular statute and rights affected. The Baker decision established a non-exhaustive list of factors that are relevant to determining what is required by the duty of procedural fairness in any case.

1. Nature of the decision made and the process followed: Following the Supreme Court’s direction that procedures culminating in a decision that resembles judicial making will militate in favour of procedural protections closer to the trial model, the Federal Court noted that the investigative process involved extensive interviews, evidence gathering and the potential for punishment. The Court drew a parallel between this case and those of wrongful dismissal actions or arbitration hearings, each of which involve “a process leading to a decision on employee misconduct.”

2. Nature of the statutory scheme: The Court rejected Canada’s argument in favour of a restrictive reading of the PSDPA which emphasized procedural protections for the discloser of a complaint. The Court noted that the Act provides for multiple avenues of complaint, with no difference in the procedural protections ascribed to each. In fact, one provision of the Act explicitly provides the subject of a complaint an equal right to procedural protections and natural justice.

3. Importance of the decision to the individual affected: This factor assigns greater procedural protection to an individual whose life stands to be greatly impacted by the relevant decision. On this point, the Court resoundingly rejected Canada’s argument that Ms. Chapman was not entitled to an oral hearing simply because she is a well-educated manager. The Court found the suggestion that “entitlement to procedural fairness is in any way to be assessed based on one’s education or status” as “offensive and quite simply wrong.” In any event, Ms. Chapman was not seeking an oral hearing, but merely a statement of the case against her and the opportunity to respond to it. As this matter concerned a threat to her job, this was of great importance to Ms. Chapman.

4. Legitimate expectations of the person affected: The Court did not dwell on this factor but noted that a provision of the PSDPA provides a very clear directive as to the duty to provide the subject of an investigation a full opportunity to know the case against him or her and to answer the allegations.

5. Choices of procedure made by the agency itself: When a statute leaves open the question of procedures to be adopted by the decision-making body, its choice of procedure may assist a court in determining the scope of the duty of procedural fairness. Again, the Court did not elaborate on this factor in light of the facts, but noted that Canada argued that the employer’s choice to appoint a third party to complete the investigation report struck the appropriate balance between a fair and efficient investigation and respect of the procedural fairness of those involved.

The Court’s conclusion

Considering the global impact of the above-noted “Baker factors,” the Court stated that it was clear that Ms. Chapman was entitled to procedural fairness at the high end of the scale. This was based mainly on the importance of the interests at stake, her legitimate expectations and the specific requirements in the Act concerning procedural fairness owed to her. Specifically, the Court found that Ms. Chapman was denied procedural fairness in the following ways: (a) she did not know the evidence against her before being questioned; (b) she had no chance to provide a full response to that evidence; (c) she was not told beforehand exactly what she was alleged to have done; (d) she was not given the right to call additional witnesses to support her position or counter evidence that was provided; and (e) she was denied the right to know the evidence against her before a decision regarding wrongdoing was made on the basis of that evidence.

While she did participate in the investigation, the value of her participation was weakened by her ignorance of the particular reason it was being conducted. There was no reason why, in the Court’s view, that Ms. Chapman could not have been informed of the name of the employee she was alleged to have grossly mismanaged (who was deceased) prior to being interviewed or why no disclosure was made of the evidence of witnesses who were interviewed before she was interviewed or before the ADM reached a decision on the complaint.

Since Ms. Chapman was denied procedural fairness in the investigation process in a way that materially affected the outcome of the case, the Court remitted the matter back to a different decision-maker. It also ordered that Ms. Chapman be given a full opportunity to respond to the investigation report (incorporating new evidence provided by her and any relevant new witnesses she identifies) prior to a new decision being made.

Takeaways

In this case, Ms. Chapman was awarded costs of $6,000. In addition to the reminder that eventual litigation over matters of procedural fairness will likely be a costly endeavour, this case illustrates why an employer’s investigatory processes must be fair. Investigations frequently play a critical role in laying the foundation for the eventual imposition of disciplinary measures. Employers must avoid the risk that an otherwise valid sanction is overturned for having a faulty foundation. Therefore, employers should review their procedures to ensure that they provide adequate procedural fairness for all parties involved.

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