Balraj Shoan was sanctioned by the Canadian Radio-television and Telecommunications (“CRTC”) following an investigation into allegations that he was harassing a fellow colleague. In response, Mr. Shoan applied for judicial review on the grounds that the investigation was not conducted in a fair manner. The Court sided with Mr. Shoan, but by that point he had already lost his appointment as the Commissioner for the Governer in Counsel (“GIC”).
Mr. Shoan was accused of harassment by a fellow employee. Following a formal investigation by an impartial third-party, the Chairman and CEO, Jean-Pierre Blais, adopted 5 measures recommended in the investigative report, which included:
- that Mr. Shoan copy the CEO on all emails that he initiates and sends to the Communication staff, except for those sent to the Administrative Officer in Toronto;
- that Mr. Shoan coordinate all calls made to the Commission staff through the CEO’s office, again, except those made to the Administrative Officer in Toronto;
- that Mr. Shoan refrain from any communication with Ms. Cliff;
- that there are no changes to the open dialogue that takes place between Mr. Shoan and the staff during certain meetings;
- and that a copy of the report be sent to the Minister for her review and consideration for any further action.
In response, Mr. Shoan applied for judicial review on the following grounds:
- that the CRTC didn’t have jurisdiction to investigate the complaint and impose measures because Mr. Shoan is a Governer-in-Counsel appointee and not technically an employee of the CRTC;
- that the investigation was not conducted in a fair manner; and
- that the ultimate finding and the imposition of corrective measures were unreasonable.
This review will focus only on the second allegation made by Mr. Shoan.
The Court found that the investigation had been conducted improperly because the investigator failed to maintain an “open mind” during the investigation, and further because the Chairman who was responsible for deciding the ultimate sanction was also a witness in the investigation. When determining whether an investigation is conducted properly, the court must ask whether “the investigator maintained an open mind, that is whether the investigator has not predetermined the issue.” It’s important to note that this test is different from that applied to a review of an adjudicative decision, which requires asking whether there was a reasonable apprehension of bias.
Courts will look to the process of the investigation and to statements made by the investigator during the investigation for evidence of a “closed-mind.” Evidence of a closed-mind in other cases has been deduced from unequal treatment of a complainant and a respondent throughout the investigation. Mr. Shoan and numerous witnesses attested that the investigator had exhibited signs that they had pre-determined the guilt of Mr. Shoan prior to the conclusion of the investigation. Mr. Shoan attested that the investigators had been overly argumentative towards him, that they interrupted him repeatedly during questioning and that they would openly frown and shake their heads. This evidence was bolstered by Mr. Shoan’s Preliminary Statement of Facts where he raised concerns regarding the investigators’ independence, and by further witnesses who attested to having gotten the same impression from the investigators. The investigator failed to file an affidavit (a sworn statement) denying any of the claims suggesting bias. Further, the investigator failed to provide notes taken during the investigation. While the Court did not draw an adverse inference from failing to provide these notes, it certainly didn’t help. Further, the investigator began inquiring into whether Mr. Shoan had created a toxic work environment, which was never alleged by the complainant. The investigator’s report further made unsubstantiated conclusions to the effect that Mr. Shoan was untrustworthy.
The weight of all this evidence pointed to the conclusion that the investigation was conducted improperly, therefore tainting the sanctions imposed on Mr. Shoan. Usually, in situations like these, the Court will send the matter back to the internal resolution body to be re-investigated. However, in this instance, Mr. Shoan had already had his appointment to Commissioner rescinded by the Governer-in-Counsel. Nevertheless, the court awarded Mr. Shoan legal costs in the amount of $30,000.
It is imperative to conduct allegations of workplace harassment in an impartial and objective manner. Specifically, it is important for investigators to be cognizant of the fact that their statements and conduct during the investigation process could be open to scrutiny. Investigators must also be careful to avoid jumping to conclusions until a full investigation has been completed and to treat the complainant and respondent equally throughout the investigation. Further, it helps if the investigator maintains detailed notes throughout the investigation in case they need to support their conclusions. In general, it is advisable for investigators to use measured language in their reports so as to prevent any impression of partiality. In this specific case, it didn’t help that the investigator failed to officially refute any of the allegations by providing a sworn affidavit to that effect.
See: Shoan v Canada (Attorney General), 2016 FC 1003