In a recent case, the Quebec Court of Appeal overturned a Court of Quebec judgment and found that procedural fairness standards applicable to administrative law are not applicable to internal investigations into complaints of psychological harassment in the workplace.

Facts

The appellant was a college professor who was dismissed for psychological harassment of some of his colleagues. The respondent was selected to investigate two complaints of psychological harassment filed on behalf of two colleagues against the appellant, in accordance with the employer’s psychological harassment policy. Following her investigation, she found the complaints were substantiated.

The appellant took action against the respondent in civil liability, alleging various procedural breaches in her investigation and holding her responsible for his dismissal. The trial judge granted in part the appellant’s action and found that the respondent failed to fulfill her obligations and thus compromised the fairness of the investigation process.

The trial judge concluded that these breaches caused moral damages to the appellant and since no immunity protects the respondent, the court condemned her to pay compensation to the appellant.

The Judgment of the Quebec Court of Appeal

The Quebec Court of Appeal dismissed the appellant’s appeal and allowed the respondent’s cross-appeal, thus overruling the conclusions drawn by the Court of Quebec.

In appeal, the appellant submitted that the trial judge underestimated the importance of the fault (negligence) committed by the respondent. The court rejected these allegations and concluded that the trial judge did not commit a palpable and overriding error.

In cross-appeal, the respondent alleged that the trial judge erred in his finding and in concluding she committed a civil fault giving rise to civil liability. The court agreed with the respondent and after reviewing the evidence, the Quebec Court of Appeal held that the respondent did not commit a civil fault giving rise to her civil liability.

Indeed, to determine whether the respondent committed a fault during her investigation, courts cannot solely rely on the rules of procedural fairness as established in administrative law. Such investigation is not comparable to an adversarial process applicable to administrative tribunals and courts of justice. It is rather part of the employer’s management and discipline power.

The Quebec Court of Appeal remarked that the respondent sometimes failed in her obligations, namely by sending meeting invitations on short notice and drafting a report whose analysis could have been more extensive. However, according to the Court of Appeal, these deficiencies cannot amount to a civil fault that caused any damage to the appellant.

What employers need to remember?

Employers can adopt internal procedural standards applicable to any investigations made pursuant to their psychological harassment policy. Depending on the circumstances, failure to comply with them may lead to different consequences, including, for example, the validity of a disciplinary sanction imposed after such an investigation.

Moreover, violation of these procedural standards may also result in civil liability, even in the absence of a policy. Indeed, if a substandard investigation leads to an undeserved and harmful disciplinary measure, civil liability of the employer and/or the person in charge of the investigation may be retained to the extent that a fault can be proven.

*This post was also contributed by Terresa Feng, Student at Norton Rose Fulbright Canada (Montreal office).