The Federal Court recently overturned a finding of harassment against a CRTC commissioner because of bias. In Shoan v Attorney General (Canada), the CRTC ordered a harassment investigation after a staff member accused Commissioner Raj Shoan of harassing her via email. While the alleged harassment concerned seven email exchanges between the complainant and Commissioner Shoan, the investigator examined an incredibly broad array of emails and incidents, to determine whether Commissioner Shoan had created a “toxic work environment", based in part on comments that the CRTC’s Chairperson made to the investigator. The Chairperson and Commissioner Shoan had a poor working relationship and openly disagreed about CRTC policies.
The investigator concluded Commissioner Shoan had indeed harassed the complainant and created a toxic workplace. The CRTC’s Secretary General, who participated in the investigation as a witness, accepted the findings and imposed corrective measures.
Commissioner Shoan judicially reviewed the Secretary General’s decision to the Federal Court, and the Court ruled that both the investigation and the Secretary General’s final decision were unreasonable because the investigation was biased.
In coming to this decision, the Court made a number of important findings dealing with workplace investigations and allegations of bias.
The report, recommendations and findings are all part of the final decision
The Court rejected the CRTC’s argument that the only decision under review was that of the Chairperson to impose corrective measures. The CRTC tried to argue that the Court could not consider the investigator’s report, because Commissioner Shoan had only judicially reviewed the Chairperson’s decision. The Chairperson did not conduct the investigation or make the recommendations, and as such, the CRTC argued that the Court could not consider those issues.
The Court rejected this argument. Under the CRTC’s policies, all these steps constituted a single decision. The Court concluded that had the Chairperson not turned his mind to the question of whether to accept the findings of the Report or recommendations, the decision to impose corrective measures would have been unreasonable.
A high degree of procedural fairness is required
The Court reaffirmed the principle that a high degree of procedural fairness is required in a harassment investigation. The investigation will have serious and profound impact on the reputations and careers of both the complainant and alleged harasser, so the procedure must be fair.
An investigator must have an open mind
The most important finding in this case was with respect to bias in the investigation. The Court held that where a person alleges the investigator is biased or closed-minded, there must be substantial grounds to support the argument – mere suspicions are not sufficient. In determining whether an investigator is biased, a Court will consider whether the investigator appeared to begin the investigation with an open mind.
Despite this high threshold, the Court nonetheless concluded that the investigation was biased, such that it was procedurally flawed. The Court based its findings on the following factors, all of which should guide future workplace investigations:
- The investigator was argumentative and interrupted the Commissioner and other witnesses during the investigation;
- The investigator’s body language was one of negative pre-disposition. She shook her head often and frowned openly while Commissioner Shoan gave evidence;
- The Chairperson’s reputation appeared to influence the investigator, such that she had a negative predisposition to Commissioner Shoan;
- Witnesses felt the Chairperson pressured them to provide witness statements that were negative towards Commissioner Shoan;
- Commissioner Shoan raised his concerns about perceived bias during the investigation, and the investigator did nothing to address these concerns;
- The investigator did not ask any witnesses who had expressed concern about bias why they had that perception;
- The investigator did not retain her notes, correspondence or audio recordings from the investigation;
- The scope of the investigation expanded beyond the contents of the complaint, into an examination of whether Commissioner Shoan created a toxic workplace (a view the Chairman first raised);
- The investigator looked at emails and incidents that had nothing to do with the original complaint;
- The investigator’s conclusions about Commissioner Shoan were far outside the scope of the investigator’s mandate;
- The investigator failed to consider the context of the emails, including the conduct of the complainant; and
- The investigator accepted all the complainant’s evidence and rejected all of Commissioner Shoan’s.
The Court ultimately concluded that the investigation had turned into a procedurally unfair “‘witch hunt’, where the investigator looked into essentially every detail and interaction Commissioner Shoan had with CRTC Staff to try to find harassment, rather than examining the complaints themselves to determine if harassment occurred.”
The ultimate decision-maker must not be biased
Commissioner Shoan also argued that the Chairperson was biased as the ultimate decision-maker, and the Court agreed. While the Court seemed to accept that the ultimate decision-maker could provide some evidence in a harassment investigation – such as the role of CRTC, the different stakeholders, or even as to the impugned email exchanges – the Chairperson’s role went beyond this. The Chairperson provided his negative views of Commissioner Shoan’s conduct and behavior generally, including that he had created a toxic workplace.
The Court’s conclusions
The Court concluded that both the Investigator and the Chairperson’s failure to respect procedural fairness made the entire report and corrective measures suspect and unreliable. The Court therefore set aside the findings of harassment.
Generally, a court’s preferred remedy on a successful judicial review is to send a matter back to be reconsidered by another person. However, here the Governor-in-Council revoked Commissioner Shoan’s appointment shortly after the hearing, and as such the Court saw no merit in sending the matter back. It did, however, award $30,000 in legal costs in favour of Commissioner Shoan, which is on the high end of what courts normally award on judicial review.
This case provides a good illustration of what is required during the course of a workplace harassment investigation. The important takeaway is that both the investigator and employer have to start the investigation with an open mind, and address any concerns of bias before rendering a decision.