Executive Summary: Key Legal and Evidentiary Issues

• Judicial review sought on the procedural fairness and substantive reasonableness of a workplace harassment investigation under federal regulations.

• Central question whether the applicant was denied the right to comment on the investigator’s final report.

• The adequacy of the employer’s response to harassment complaints and the sufficiency of the investigation process were challenged.

• The court considered whether delay or inaction by a senior executive could constitute workplace harassment.

• The legitimacy of the employer’s process for adopting and implementing the investigator’s recommendations was scrutinized.

• Costs were awarded to the respondent after the court dismissed the application for judicial review.

Facts and outcome of the case

Background and parties

Darlene Carreau, the Chief Administrator of the Courts Administration Service (CAS), applied for judicial review of a decision made by CAS following a workplace harassment and violence investigation. The investigation was conducted under the Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, pursuant to a complaint by Lucia Fevrier-President, a CAS employee. The Attorney General of Canada was also named as a respondent.

Lucia Fevrier-President, with over 25 years in the federal public sector, filed a formal complaint in September 2022 against her immediate superior, alleging harassment as defined under the Canada Labour Code. In August 2023, she filed a further complaint against three CAS executives, including Carreau, alleging their inaction and mismanagement of her initial complaint, which she claimed resulted in a failure to provide a safe workplace.

Investigation and procedural developments

A third-party investigator was retained to examine both the initial and subsequent complaints. The investigation included interviews with the complainant, the respondents, and witnesses. The investigator ultimately found that the allegation against Carreau met the threshold for workplace harassment and violence. The investigator’s report included 15 general recommendations for CAS but did not single out Carreau personally.

A dispute arose when CAS, after initially treating the investigator’s report as final, later deemed it preliminary and invited further comments from the parties. The investigator objected, insisting her report was final and refusing to accept further submissions. This procedural disagreement became central to Carreau’s application for judicial review, which argued that her right to procedural fairness had been breached.

Court’s analysis

The court examined whether procedural fairness required the investigator to allow parties to comment on the final report before it was adopted. It concluded that the regulatory framework and the nature of the independent investigation process did not entitle parties to critique or influence the investigator’s ultimate findings and recommendations after the fact. The court found that Carreau had been given ample opportunity to know and respond to the case against her during the investigation and that no demonstrable prejudice resulted from the process.

On the substantive issues, the court rejected the argument that mere delay or inaction could not constitute workplace harassment. The court held that the regulatory and policy framework imposed a duty on senior management to act diligently in response to workplace complaints, and that failure to do so could meet the threshold for harassment.

Outcome and costs

The court dismissed Carreau’s application for judicial review, finding no procedural or substantive error in the investigation or the employer’s decision to implement the recommendations. Costs in the amount of $2,500 were awarded to Lucia Fevrier-President, the respondent, against Carreau. No damages were awarded, and no costs were awarded to or against the Attorney General of Canada.