The Right to Reply: A Principle of Fairness That Also Applies to Plaintiffs

Workplace investigators must give an equal opportunity to all parties to be heard and to respond to any contradictory evidence that comes to light during an investigation.

One year after its publication, it is useful to recall the lessons of the Marentette v. Canada (Attorney General)^[1] decision, particularly in light of recent jurisprudential developments which continue to emphasize the importance of a fair and transparent process. In it, the Federal Court forcefully reiterated that a workplace investigation cannot be considered fair if it deprives either party – including the complainant – of the opportunity to hear and respond to adverse evidence.

This decision continues to be cited and to inspire practice, while the courts regularly remind us that it is not the outcome of an investigation that is at issue in a judicial review, but the rigor of the process followed and respect for fundamental procedural rights.

In this decision, a Canadian border services officer alleged that, between 1995 and 2020, he had been subjected to workplace harassment by six supervisors. In short, he alleged that he was subjected to threats, insults and discriminatory comments.

Although Marentette filed his notice of incident in April 2021, it wasn’t until April 2022 that the Canada Border Services Agency (“CBSA”) retained the services of an investigator. In the final report sent to Marentette in January 2023, the investigator determined that none of the allegations constituted workplace harassment and violence.

That said, the investigation process that led to this conclusion raised concerns for the judge about the fairness of this procedure. More specifically, the CBSA had established a set of procedural steps to be followed during the investigation, which had not been respected. According to these steps, Marentette, as well as the respondent parties, should have received a copy of the investigator’s preliminary report and been given the opportunity to submit their comments. This formed the basis of the judicial review.

Thus, the Court examined the question of whether Marentette had been given the opportunity to respond to any adverse evidence raised during the investigation^[2]. In the judge’s view, it was unreasonable to expect that, in his one meeting with the investigator and through his notice of incident, Marentette would have been able to anticipate and exhaustively address everything that the supervisors and the witness might share^[3].

Moreover, the Court emphasized that investigations into allegations of harassment and violence in the workplace require a high degree of procedural fairness, given the seriousness of the allegations and their potential consequences^[4]. In such contexts, it is all the more essential that the parties be given a real opportunity to respond to adverse evidence.

This decision thus confirms an important procedural element in workplace investigations, namely the complainant’s right to know and respond to evidence contrary to his or her allegations. While this right is well-established for those targeted by a complaint, this decision confirms that the complainant is entitled to a similar opportunity when contradictory evidence is raised during the course of an investigation.

More recently, in Saint-Denis v. Canada (Attorney General),^[5] the Federal Court reiterated that it is not the result of the investigation that can be challenged before the courts, but rather compliance with the principles of procedural fairness. The plaintiff must show that a breach of fairness occurred that compromised the validity of the investigation. In other words, it is not enough to disagree with the investigator’s conclusions; it must be proven that the process itself was vitiated to the point of affecting its seriousness and credibility^[6].

Essential Points

A fair investigation requires that the parties involved, including the complainants, have an opportunity to present their versions and respond to contradictory evidence. This decision emphasizes transparency and communication during an investigation.

Finally, failure to observe procedural fairness can diminish the credibility of an investigation and expose the employer to extensive liability risk and a costly litigation process.

At Latitude, we provide training to develop and strengthen the skills of in-house investigators. In addition, to promote safe and healthy work environments, we offer a variety of services, such as workplace investigations. Contact us for more information.

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[1] 2024 FC  676.

[2] Ibid., paras. 51 and 52.

[3] Ibid., para. 16.

[4] Ibid., para. 40.

[5] Saint-Denis v. Canada (Attorney General), 2025 FC 339

[6] Ibid, para. 59.