Summary
The Divisional Court has provided further guidance in Noel v The Corporation of the City of Dryden on how an employer may appropriately use an external investigator’s report on workplace harassment. In this article, we review the Court’s decision on how such workplace investigation reports may be used to determine and apply corrective measures in the workplace.
Background
The applicant for judicial review, Ritch Noel, was an elected municipal councillor with the City of Dryden (the “City”). After Mr. Noel’s election to this position, the City received complaints from a bylaw enforcement officer, as well as its chief administrative officer, that Mr. Noel engaged in improper conduct toward them. Among other things, Mr. Noel allegedly verbally confronted the bylaw enforcement officer in a store parking lot and served the chief administrative officer with a Notice of Libel at his home on Christmas Eve.
As required by law, the City had a workplace harassment policy and procedure, as well as a separate code of conduct (collectively, the “Policy”). The City retained an external workplace investigator to investigate the complaints and provide it with a report that outlined her findings on whether Mr. Noel’s conduct contravened the Policy and to provide recommendations. During this investigation, the investigator provided Mr. Noel with the opportunity to respond to the allegations against him.
The investigator concluded that Mr. Noel engaged in workplace bullying and harassment contrary to the Policy and provided recommendations focused on reducing workplace conflict.
Upon receiving the external investigator’s report, the City took corrective measures against Mr. Noel by incorporating these measures into a by-law that the City’s council voted on and passed. Specifically, the council required Mr. Noel to undergo civility training and attend its meetings and functions virtually until he completed this training.
The City Was Entitled to Rely on the Investigator Report to Implement Measures, says the Divisional Court
Mr. Noel disagreed with the corrective measures that were taken against him and applied for judicial review of the City’s decision to discipline him. We note that Mr. Noel’s situation was exceptional in that judicial review of a disciplinary decision will generally not be available in most employment or employment-like relationships; however, the Court’s analysis on the use of external investigation reports remains instructive.
Mr. Noel argued that it was unreasonable for the City’s council to rely on the external investigator’s findings and that the investigative process was not procedurally sound, among other things. In particular, Mr. Noel argued that the investigator’s interpretation of the Policy was legally incorrect and that her conclusions regarding bullying and harassment were unsupported by the evidence. Mr. Noel in turn argued that the City was unreasonable for relying on the Investigator report given these errors.
For example, because of the Policy’s wording, Mr. Noel argued that workplace harassment could only be found if there was also provable discrimination contrary to the Human Rights Code. Mr. Noel also disagreed with the way by which the investigator conducted her investigation by objecting to how the investigator approached the parties to the investigation and the submissions made by them, and her decision to characterize Mr. Noel’s conduct as a pattern of problematic behaviour instead of isolated incidents.
The Court disagreed. The Court noted that the fact that another investigator might have reached a different conclusion is not enough for the City’s reliance on the report to be rendered unreasonable. In fact, the Court found that the report demonstrated that the external investigator considered the competing views and submissions, identified the applicable definitions set out in the Policy, assessed the evidence in totality, did not reflect a “wholesale acceptable” of the complainants’ positions, and ultimately adopted an interpretation contrary to the one advanced by Mr. Noel. For example, the Court stated that Mr. Noel was provided an opportunity to know and to respond to the allegations made against him. The report also demonstrated a clear understanding and engagement with the applicable Policy. Mr. Noel was also represented by counsel throughout the process.
Moreover, the decision also indicates that the investigator considered the complaints against Mr. Noel as a neutral; while she concluded that Mr. Noel breached the Policy through his conduct, the investigator did not accept all of the allegations put to her by the complainants but made her determinations based on the evidence she gathered throughout her process. In essence, the Court determined that Mr. Noel had not identified a legal or factual defect of such significance that it was unreasonable for the City to rely upon those conclusions in determining an appropriate response.
Moving Forward: Takeaways for Employers
The Divisional Court’s decision is a meaningful addition to an evolving and growing area of law on the manner in, and extent to which, employers may use and rely on external investigation reports. In general, the Court’s review of the external investigator’s process and how she considered the evidence before her in respect of Mr. Noel’s conduct and the Policy could be informative for employers carrying out their own workplace harassment investigations, helping shape their internal procedures including reviewing competing submissions and making factual findings. The decision confirms that employers may rely on the assessments and conclusions contained in external workplace investigation reports in determining whether to discipline, or refrain from disciplining, employees depending on the circumstances. Employers should be advised to nonetheless critically assess reports and determine whether there are significant factual or legal issues or errors that may result in a conclusion that it was unreasonable to rely on a given report. It remains open how the Court would have decided whether it was reasonable to rely on the report if the Court determined that it was not thorough or procedurally sound. Lastly, for municipalities or other elected bodies, the Court’s reasons also inform how they choose to go about addressing allegations of workplace harassment by their elected members on the basis of an external investigation report.
Need More Information?
For more information or assistance with workplace investigations and disciplinary issues, contact Alex Kennedy at akennedy@filionlaw.com or your regular lawyer at the firm.