An interesting case dealing with the degree of procedural fairness owed by a public body to someone affected by its decision was recently decided by the Court of Queens Bench of Saskatchewan in Oberg v Saskatchewan (Board of Education of the South East Cornerstone School Division No. 209), 2020 SKQB 96 (CanLII)).
The case involved a school board removing the duties of a principal of a high school following an investigation which included an investigation report, which the board accepted. The principal brought an application for judicial review challenging the board’s decision on the basis that it was made without affording him procedural fairness.
The Court allowed the application for judicial review. It found that the board owed the principal a high degree of procedural fairness in the process of making its decision. The Court found that the board breached this duty in several ways thus “rendering the Decisions invalid from the outset”. The court also concluded that, even if the facts in the investigation report are accepted, that the board’s decisions “are substantively unreasonable because the penalty imposed by the Board does not fall within a range of reasonable alternative outcomes”. The court reinstated the principal to his full duties.
What is the duty of procedural fairness?
The court was of the view that its task in a case such as this was to satisfy itself that the process employed by the decision-maker was fair. When considering the duty of fairness owed by a public body, the court found that the following five (5) non-exhaustive list should be considered as a basic framework for assessing procedural fairness:
- The nature of the decision and the process used to make it. The more the process provides for a decision resembling judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required;
- The nature of the statutory scheme and the terms of the statute under which the body operates. Greater procedural protections are required when no appeal procedure is provided in the statute or when the decision will finally determine the issue;
- The importance of the decision to the individual affected. The greater the impact on the lives of those it affects, the more stringent the procedural protections;
- The legitimate expectations for procedural fairness of the person challenging the decision, which is often informed by any policy the public body has in place respecting processes for decision-making; and
- The choices of procedure made by the body itself, particularly when the statute gives the decision-maker the ability to choose its own procedures, or when the body has expertise in determining what procedures are appropriate.
Furthermore, the court observed that:
A “high standard of justice is required when the right to continue in one’s profession or employment is at stake” because discipline “can have grave and permanent consequences upon a professional career”: Baker at para 25, referencing Kane v Board of Governors of the University of British Columbia, 1980 CanLII 10 (SCC),  1 SCR 1105, at 1113 [Kane].
The school board conceded that it owed the principal a duty of fairness, though argued that this duty was “marginal” and relied on the Education Act. The court disagreed with this view and found that the board “owes a duty of procedural fairness and natural justice throughout any process it employs pursuant to s. 215 of The Education Act, 1995.” Further, the court found that the board’s own policies integrated a requirement of a high standard of procedural fairness before coming to a decision regarding an employees’ employment. Finally, the court relied on Kane in finding that a “high standard of justice and fairness” is required where a decision can substantially affect someone’s employment, as in this case.
Content of the duty of procedural fairness?
The board adopted the Saskatchewan School Board Association Investigation Manual. In the circumstances, the court found that:
When a public decision-maker has set out specific procedures for conducting its affairs, the doctrine of legitimate expectations applies to protect a procedural or substantive interest when a public authority fails to follow those procedures.
Further, as the investigation was the only time where evidence would be weighed and assessed prior to a decision, this suggested that the investigation had to be highly procedurally fair. In this case, the Board relied solely on the findings of the Investigation Report.
According to the court:
Conducting a fair workplace investigation requires considering bias, thoroughness, and the employee’s right to reply and be heard. Many Canadian courts have criticized employers for failing to provide employees with a fair and fulsome opportunity to respond. While an employer need not be perfect, cumulative mistakes in an investigation can amount to a breach of procedural fairness and constitute a failure to act in good faith.
Indeed, Canadian courts have found that the following errors in workplace investigations constitute a failure to act in good faith:
- Failing to act impartially: Doyle v Zochem Inc., 2017 ONCA 130 [Doyle]; Karmel v Calgary Jewish Academy, 2015 ABQB 731 [Karmel]; Elgert v Home Hardware Stores Ltd., 2011 ABCA 112, 336 DLR (4th) 313 [Elgert]; Chapell v Canadian Pacific Railway Company, 2010 ABQB 441, 29 Alta LR (5th) 380 [Chapell]; and Faghihi v 2204159 Ontario Inc., 2016 HRTO 1109;
- Rushing to judgment before obtaining the facts: Elgert; Lalonde v Sena Solid Waste Holdings Inc., 2017 ABQB 374 [Lalonde];
- Failing to be transparent or honest with the accused employee during the investigation process: Elgert; Karmel; Piresferreira v Ayotte, 2010 ONCA 384, 319 DLR (4th) 665;
- Failing to provide particulars of allegations to an accused employee: Chapell; Elgert;
- Failing to provide the accused employee with an adequate opportunity to explain or respond: Doyle; Elgert; Lalonde; Chapell;
- Failing to consider an employee’s response: Karmel; Chapell;
- Failing to interview witnesses with potentially relevant information: Elgert; Lalonde;
- Failing to consider other evidence, such as surveillance or computer records, which might be relevant to the investigation: Lau v Royal Bank of Canada, 2015 BCSC 1639 and Lau v Royal Bank of Canada, 2017 BCCA 253, 415 DLR (4th) 166; and
- Failing to follow the employer’s own policies regarding the conduct of workplace investigations: Elgert; Frolov v Mosregion Investment Corporation, 2010 HRTO 1789.
The court found in Oberg that the Board breached its duty to be procedurally fair in three fundamental ways:
- Failing to provide the employee with sufficient particulars of the allegations;
- Failing to provide the employee with a fair opportunity to respond (the audi alteram partem principle); and
- Failure to provide the employee with sufficient reasons for a decision that affected him significantly.
The court was particularly concerned about (1) and (2) as these “are the central tenets of procedural fairness: knowing the case one has to meet and being given an opportunity to meet it.”
The court provided the following guidance:
- Specifics needed to be provided for each and every allegation that investigators ultimately relied upon to support their conclusions.
- To ensure that an employee’s responses to allegations are accurately reflected and conveyed to any decision-maker, it is an essential practice to take detailed notes in any investigation meeting, or to record the meeting. Notes create a record that helps to support transparency, justification and intelligibility. Notes were not provided to the court for review.
- In order to ensure that an employee is given an opportunity to be heard, it is crucial that specific findings that are relied upon to come to a conclusion are put expressly to the employee for a response. To ensure this practically, it is often necessary to re-interview the employee at the conclusion of an investigation to put the investigator’s factual conclusions to him or her to give a final opportunity to respond. Given that the Investigation Report contained findings of fact consisting of quotations and reconstructed conversations, this was an appropriate case to re-interview the employee after a draft of the Investigation Report was complete in order to give him a fair opportunity to respond.
- In some circumstances, the duty of procedural fairness requires the decision-maker to provide a written explanation for its decision, particularly where the decision has important significance for the individual and there may be mechanisms for the individual to challenge it. Reasons help to demonstrate transparency, intelligibility and justification, particularly when there are conflicting versions of events.
- The most basic rules of procedural fairness are that a decision-maker must: (1) provide those affected with an opportunity to be heard; (2) listen; and (3) not make a decision until listening to and considering the submissions of those affected.
Each case is fact specific, and while this case dealt with a duty of fairness to be afforded by a public body in an investigation of this nature, it provides helpful guidance to employers and investigators more generally, when conducting a workplace investigation. Fairness and transparency are key ingredients to a successful investigation and decision. Ensuring that both are present requires not only careful preparation and a roadmap, but an ability to respond and react to the inevitable twists in a road, always with an eye on objective fairness. Although the investigation doesn’t have to perfect, it must certainly strive to be fair.