Executive Summary: Key Legal and Evidentiary Issues

• Judicial review sought of ESDC’s acceptance of a workplace harassment investigation report

• Original investigation lacked procedural fairness by excluding the applicant from evidence review

• Parties reached a consent judgment agreeing the investigation process was flawed

• Court ordered a new investigation by a different investigator

• The applicant was granted the right to review and respond to evidence collected in her absence

• $3,500 awarded to the applicant in all-inclusive costs

Facts and outcome of the case

The case involves Susan Holita, who filed a workplace harassment and violence complaint. The matter was handled by Employment and Social Development Canada (ESDC), which accepted an investigative report as part of its resolution process. However, the report had been completed without providing Ms. Holita the opportunity to review or respond to key evidence gathered in her absence. This raised significant concerns about procedural fairness and the integrity of the investigative process.

Ms. Holita initiated a judicial review application before the Federal Court, challenging ESDC’s decision to accept the report. In response, both parties agreed to resolve the matter through a consent judgment, which was formalized by Justice William Pentney. The consent judgment acknowledged procedural flaws in the original investigation and agreed that the decision should be set aside.

The Federal Court granted the judicial review and nullified the prior decision by ESDC. It ordered that the matter be sent back to ESDC for a fresh investigation, to be conducted by a different investigator. Critically, the court required that Ms. Holita be allowed to see and make submissions on any evidence gathered in her absence before the new report is submitted to ESDC.

As part of the judgment, the Attorney General of Canada, representing the respondent, was ordered to pay $3,500 in all-inclusive costs to Ms. Holita. This outcome affirms the importance of procedural fairness in administrative investigations, particularly those involving sensitive workplace matters.