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‘Fundamentally flawed’: CBSA ordered to conduct new investigation into harassment and violence

by HR Law Canada

The Canada Border Services Agency (CBSA) has been ordered to conduct a new workplace investigation, using a different investigator, after a long-serving border guard alleged multiple incidents of workplace harassment and violence.

C.M. began working for the agency in 1994 and said the harassment and violence — in the form of hate crimes, discrimination, physical violence, and derogatory treatment by supervisors — took place over a 25-year period from 1995 to 2020.

Despite these serious accusations, the investigative report completed in January 2023 by the CBSA concluded none of the incidents met the definition of workplace harassment or violence. Consequently, no preventive measures were recommended, and CBSA closed the file.

Dissatisfied with the handling and outcome of the investigation, C.M. pursued judicial review, arguing that the investigation lacked procedural fairness — a contention the Federal Court has agreed with as it called the process and final report “fundamentally flawed” and a “matter for a new investigator.”

It found that C.M. was not given the opportunity to respond to contradictory statements nor shown the preliminary report before the final decision was made. This lack of engagement, the court ruled, breached the duty of procedural fairness, warranting a new investigation.

Key issues in this case

Key issues identified in the case include:

Procedural fairness: The court highlighted the significant procedural failings, noting that C.M. was not provided an opportunity to challenge the information presented by others during the investigation. This right to respond is fundamental in ensuring fairness, particularly when serious allegations are involved.

Definition of harassment and violence: The decision raises questions about the standards used to define harassment and violence in the workplace. The investigator’s conclusion that none of the reported incidents constituted harassment or violence according to CBSA guidelines was critical to the C.M.’s decision to seek judicial review.

Transparency and communication: The absence of communication about the investigative process and findings was a crucial factor in the court’s decision. The judge noted, “the investigator should have given [the applicant] a reasonable opportunity to rebut any unfavourable evidence that was gathered in his absence and to respond to any of the managers’ allegations that their behaviour in the workplace did not constitute violence or harassment.”

New investigation ordered

The ruling not only mandates a new investigation but also stresses the need for CBSA to allow the applicant to review and respond to all evidence and findings before a final report is issued.

“The matter is referred back to CBSA for redetermination after a new investigation is conducted by a different investigator and after the Applicant has had the opportunity to see and make submissions on evidence gathered in his absence and to comment on the investigator’s preliminary report before it is sent to CBSA,” the court said.

It also awarded $3,500 to C.M., all-inclusive, for costs. Both parties agreed in advance that the successful party should receive that amount.

For more information, see Marentette v. Canada (Attorney General), 2024 FC 676 (CanLII).

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