Navigating Workplace Investigations: Tips to Withstand Turbulence
By David Louie
Introduction
As workplace investigators, we are ever mindful to ensure our investigation process is fair, reasonable, and ultimately withstands legal scrutiny. The 2025 case of Air Canada v Canadian Union of Public Employees, Air Canada Component, 2025 CanLII 39078 (CA LA) (Hastings Discharge Grievance) addresses bias, the standard of proof, and thoroughness. It offers lessons to internal and external investigators on how to help ensure the investigation process withstands turbulence.
Case Summary
This termination case arose from a complaint of sexual harassment made by a female Air Canada employee (the “Complainant”) against a male colleague (the “Grievor”), both flight attendants, who had worked together many times over 25 years.
The Complainant’s complaint included allegations of sexual harassment on the part of the Grievor, including physical contact and sexual remarks. Specifically, the Complainant alleged the Grievor made two references to a “hand job” and a reference to the Complainant being “a bottom” while they were serving meals. She also alleged two instances of unwanted bodily contact, for a total of five allegations.
Two internal investigators conducted the investigation (the “Investigation”). The investigators interviewed the Complainant, the Grievor, and a witness. They issued a written report (the “Report”), substantiating all five allegations and concluding the Grievor sexually harassed the Complainant. Air Canada discharged the Grievor.
Concerns With Investigation and Report
At the hearing, the union argued, in part, that the Investigation and Report were biased and flawed. Arbitrator Chauvin shared many of these concerns and dedicated a portion of his written decision to outline them.
Biased notes: The union submitted that one of the investigators made disparaging judgments regarding the Grievor in her Investigation notes, revealing her bias and dislike for him. For example, she wrote, “Credibility: Likely did it all”; “So much smugness”; “His responses were curt and quick. ‘Obviously that's what I do’”; “This is a frat boy”; and “If he said ‘hand job’, then he more likely than not said ‘I’m a bottom.’” On cross-examination, the investigator insisted the comments were only her own “inner emotions” and should not be given any weight at the hearing or in the Report.
The union said the investigators wrongly made their credibility assessments based on these “generalized and unsubstantiated comments” and the Grievor’s demeanor, rather than upon all of the evidence, which violated the principles in Faryna v Chorny, 1951 CanLII 252 (BCCA).
The arbitrator agreed, characterizing the investigator’s comments in her Investigation notes as “troubling” and appearing to “disclose a generalized bias against the Grievor, based upon his demeanor.”
Incorrect burden of proof and lack of reasons: The union submitted that the Report found that the Grievor committed all five of the alleged acts, commonly because it was “plausible” that he did so, without giving valid reasons, and while ignoring evidence to the contrary. The union emphasized that “the balance of probabilities” is the legal standard.
The arbitrator found the investigators applied an incorrect legal test to assess credibility and to make findings of fact. The arbitrator found that the investigators made conclusions “without giving sound reasons” and at times because they found it “plausible.” He noted the investigators asked the Grievor very few questions about one of the allegations and discounted evidence to the contrary. He emphasized that all evidence regarding each of the five allegations must be assessed, and the principles in Faryna must be followed, before findings regarding credibility and facts can be made.
Lack of verification attempts: The union noted that the investigators conducted only one interview of each participant and did not make any attempts to cross-reference, verify, or corroborate each participant’s statements through, for example, flight records or evidence from other staff, despite the fact it was possible to do so.
The arbitrator shared the union’s concerns. He noted the passage of time and the Complainant’s lack of specific recollection associated with some of the allegations made some form of verification of those allegations even more important.
Decision
Ultimately, Arbitrator Chauvin found that only two of the allegations were substantiated (one of the hand job comment allegations and one of the physical touching allegations). He reinstated the Grievor and substituted the termination with a three-month suspension.
Takeaways
This decision offers some useful takeaways for workplace investigators:
Notes: While taking interview notes, be mindful of recording subjective judgments in those notes. To the extent you do record such assessments, limit those to what is relevant for your credibility assessment and findings, and do not rely exclusively on such observations. Instead, have regard for the evidence as a whole.
Apply the correct test and reasons: Ensure that you do not substitute an alternative threshold for the burden of proof. In this case, the investigators’ repeated references to events being “plausible” constituted an incorrect application of the standard of proof (a balance of probabilities). From there, clearly lay out the reasons for arriving at findings of fact, having regard for the credibility assessment and the evidence.
Don’t leap: Avoid basing a conclusion that the respondent engaged in one type of behaviour because they engaged in a different (even if similar) type of behaviour. This can be a tenuous leap. As the arbitrator in this case noted, just because a respondent admits to one allegation, does not reliably mean they engaged in a separate allegation.
Verify: Ensure that you seek to verify and corroborate evidence, or explain why such steps were not taken. It is prudent to consider proportionality in seeking corroborative evidence, but where material facts may be established with such evidence, it is important to explain that process in the investigation report. As the arbitrator noted, the passage of time and a participant’s lack of specific recollection may render verification a particularly important step. This may include obtaining and reviewing additional documents, interviewing additional witnesses, and conducting follow-up interviews with participants.
Keep these in mind to help ensure your investigation process is cleared for takeoff.
Learn more about the services we provide at Hawkins Lang + Price LLP.
This blog is not legal advice; its purpose is to provide general information. Every situation must be considered on its own facts. Consult a lawyer to address the specific circumstances of your matter.