Tips to Ensure Procedural Fairness in Assessments and Investigations

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In Therrien v. Canada (Attorney General), 2015 FC 1351 (CanLII), Ms. Sylvie Therrien sought a judicial review of a decision made by the Public Sector Integrity Commissioner of Canada (“PSIC”) as the PSIC refused to investigate several aspects of the complaint she filed against her former employer, Service Canada, a federal government department.

This case is instructive for any investigators who perform harassment investigations, fraud investigations or who investigate other forms of wrongdoing on behalf of public sector agencies, particularly if there is both an assessment and an investigation process.

Justice Bell distilled the case to two main issues:

  1.  Did the procedure adopted by the Office of the PSIC to decline to investigate Ms. Therrien’s reprisal complaint in relation to her suspension without pay, the revocation of her reliability status and the termination of her employment meet the requirements of procedural fairness?;and
  2.  Is the decision to decline to investigate Ms. Therrien’s allegations of reprisals in relation to her suspension without pay, the revocation of her reliability status and the termination of employment reasonable?

The Court found in favour of the PSIC and its analyst on both counts. With respect to the first issue the Court found for the PSIC because the procedural fairness (i.e. natural justice) requirements are not the same in an assessment as they are in an investigation. The Court also found that the PSIC was forthcoming in their disclosures to Ms. Therien and provided written explanations as to why they may or may not choose to investigate the case.

With respect to the second issue the Justice Bell found in favour of the PSIC because there was a separate grievance process occurring under the Public Service Labour Relations Act for some of the specific issues she brought before the PSIC. The PSIC can refuse to investigate a complaint if it also is before the Public Service Labour Relations tribunal or being handled by another process.

The lesson in this case is that having a well designed assessment process is very important for public sector investigating bodies. It is equally important to be clear with complainants and respondents about what the processes, mandate and legislative authority of the investigating organization are.