Executive Summary: Key Legal and Evidentiary Issues

• Procedural fairness was at issue due to the applicant not being given an opportunity to review or respond to statements and preliminary reports during the harassment investigation.

• The investigation substantiated only the allegation of a poisoned work environment, leaving other allegations unaddressed in the analysis.

• The CRA’s rejection of the grievance relied on section 208(2) of the Federal Public Sector Labour Relations Act, asserting that an administrative procedure for redress existed.

• Compliance with the Work Place Harassment and Violence Prevention Regulations under the Canada Labour Code was examined.

• The court considered whether the applicant’s right to procedural fairness was breached and what remedy was appropriate.

• Costs of $1,200.00 were awarded to the applicant as the successful party.

Facts of the case

The applicant, Xiujuan Qi, was hired by the Canada Revenue Agency (CRA) on April 10, 2017, as a determinate CS-01 IT Developer and was promoted a year later to a CS-02 IT Analyst/Developer. Between 2021 and 2024, she worked in various departments, including the Innovation & Emerging Technologies, Strategic Engineering and Technology Integration (SETI), Solutions Architecture and Integration Directorate (SAID), and the Information Technology Branch. The events leading to the grievance occurred between March and July 2021 while she was at SETI.

On November 9, 2021, Ms. Qi filed two notices of occurrence of workplace harassment against her former team leader and former mentor. The notices, submitted under the Work Place Harassment and Violence Prevention Regulations, referred to four major allegations: inconsistent evaluations and degrading comments, improper and offensive comments in workplace settings, a poisonous work environment, and improper use of a Performance Improvement Plan to threaten and intimidate her. Ms. Qi provided specific examples, including being told she was “not a qualified CS-02,” being assigned flawed work without support, and being threatened with firing or demotion.

The CRA appointed an investigator on March 15, 2022. The applicant, the two responding parties, and one witness were interviewed, but the applicant’s union representative was not. Ms. Qi was interviewed once and provided a detailed Excel spreadsheet of occurrences. She was not given an opportunity to review or reply to statements made by others or to see preliminary reports shown to other parties. Despite her repeated requests, she did not receive a preliminary report or a chance to clarify disputed facts before the final report was completed.

The final investigation report, issued on August 23, 2022, substantiated only the allegation of a poisoned work environment and included recommendations for preventive measures. The CRA implemented a Preventive Measures Implementation Plan, focusing on additional training for employees. On September 7, 2022, the CRA informed Ms. Qi that it accepted the findings. She responded that serious occurrences were not addressed and that she was not given an opportunity to rebut statements or comment on preliminary reports.

On October 5, 2022, Ms. Qi filed an individual grievance under subsection 208(1) of the Federal Public Sector Labour Relations Act, grieving the investigation and final report. The grievance was placed in abeyance on November 7, 2022, and later denied at the second level on July 9, 2024. The final decision, rejecting the grievance, was issued on September 18, 2024.

Policy terms and legislative framework

The decision under review relied on section 208(2) of the Federal Public Sector Labour Relations Act, which limits the right to present an individual grievance if an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act. The CRA also cited the Work Place Harassment and Violence Prevention Regulations under the Canada Labour Code, which require employers to take prescribed measures to prevent and respond to workplace harassment and violence, and to implement recommendations from investigation reports. The decision maker concluded that the process was preventative and that no personal remedies were awarded, and that the appropriate administrative procedure for redress was an application for judicial review.

Court’s analysis and outcome

The Federal Court found that the applicant’s right to procedural fairness was breached. Ms. Qi was not given the opportunity to review or comment on statements from other parties or on preliminary reports before the final report was issued. Both parties agreed that procedural fairness had been breached. The court determined that the appropriate remedy was to set aside the CRA’s decision and refer the matter back for redetermination after a new investigation is conducted, ensuring that Ms. Qi is given the opportunity to see and make submissions on evidence gathered in her absence and to comment on the investigator’s preliminary report before it is sent to the CRA.

The court granted the application for judicial review, set aside the CRA’s decision dated September 18, 2024, and remanded the matter for redetermination after a new investigation. The court ordered the respondent to pay the applicant $1,200.00 as her all-inclusive costs. The successful party in this case is Xiujuan Qi.