What constitutes a proper level of procedural fairness in workplace investigations is an evolving concept that continues to challenge investigators and human resources professionals. More recently, judicial decisions have added clarity or complexity (depending on whom you ask!) to how fairness obligations are understood and applied.
Two important Federal Court decisions, Marentette v. Canada (2024) and Carreau v. Canada (2025), have added nuance to the discussion around what each party to an investigation is entitled to know and respond to. Understanding these cases is essential for any organization that wants to ensure its investigations remain defensible and fair. If you are unsure whether your investigation procedures are up to standard, Bridge Legal & HR Solutions can assist with a review and revision of your organization’s policies and procedures.
The Expanding Scope of Procedural Fairness
Procedural fairness refers to the obligation that decision-makers have to act in a proper and impartial manner when their decisions affect the rights or interests of others. In the workplace investigation context, this means that investigators must ensure that both complainants and respondents are treated equitably and that the process is transparent, unbiased, and reasonable.
For many investigators, the focus is on the respondent when it comes to fairness, since the respondent is the individual accused of misconduct and the party most likely to face consequences. The prevailing concern is often to prevent findings of wrongdoing without giving the respondent an opportunity to answer the allegations. However, recent cases indicate that fairness must be considered and applied more broadly. Complainants, too, are entitled to certain rights of participation, including an opportunity to rebut evidence that contradicts their own.
This shift can create operational challenges for employers. Balancing the rights of both parties can be difficult when privacy, confidentiality, and procedural integrity are all at stake, particularly when internal investigators may have other demands on their time. If this is a concern for your organization, Bridge Legal & HR Solutions can help, with customized training on conducting workplace investigations, or with independent, third-party investigation services.
Marentette v. Canada: Reaffirming the Right to Rebut
In Marentette the Federal Court considered the participation rights of complainants in a workplace investigation. The Court held that a complainant must be given the opportunity to see and respond to adverse evidence introduced by respondents or witnesses. This ruling underscored that fairness extends in both directions, not only toward the individual facing allegations.
In practical terms, this means that investigators cannot simply collect evidence, test it against the respondent’s account, and reach conclusions without giving the complainant an opportunity to review material that may undermine their credibility. The decision stresses that withholding such information can amount to procedural unfairness.
For organizations, this introduces new responsibilities. Investigation frameworks must include clear procedures for disclosure, rebuttal, and comment. Templates and checklists should specify when and how evidence is shared, ensuring that no party is disadvantaged by lack of information.
Carreau v. Canada: Testing the Boundaries of Transparency
While Marentette clarified the right to rebut evidence, Carreau examines how far that right extends. Specifically, it considers whether fairness requires that parties be allowed to view and comment on an investigator’s draft findings before the report is finalized.
Some investigators follow a practice of allowing comment on draft findings, and similarly some organizations have this step built into their own investigation procedures. Whether this is a best practice has, until now, been up for debate. On one hand, allowing comment on draft findings may prevent errors or misunderstandings. On the other hand, it can create logistical and confidentiality challenges, and also confusion as to the role of the investigator.
In Carreau, the Court declined to expand the transparency seen in Marentette and instead made a distinction between parties being allowed to comment on the evidence that could potentially undermine their own statements, and parties being given the ability to critique and argue with an investigator’s conclusions. The former, according to the Court, is a fundamental part of procedural fairness, whereas the latter is not only not required, but also inadvisable. The Court noted that giving parties the chance to review preliminary conclusions could undermine the investigator’s neutrality and expose them to pressure to negotiate the outcomes of the investigation.
The implications are significant. Organizations that follow a practice of allowing parties to comment on draft reports must now consider the Court’s comments on how this process can undermine investigative neutrality.
Practical Steps for Employers and Investigators
The lessons from Marentette and Carreau have immediate, practical consequences for organizations conducting internal investigations. Employers should consider several steps to align with current standards:
- Review and Update Investigation Policies
- Policies should clearly define when parties are entitled to disclosure and how disclosure is provided
- Consider Comment Periods
- If parties are provided with an opportunity to comment on preliminary reports, consider how the impartiality of the investigator is respected during this process
- Document Fairness Decisions
- Every choice about disclosure, timing, and scope should be recorded. Written decisions demonstrate that procedural fairness was considered and applied.
- Train Investigators Regularly
- Procedural fairness standards evolve quickly. Regular training ensures that investigators remain competent and confident.
- Seek Guidance Early
- Complex investigations benefit from early consultation with human resources experts and/or legal counsel. Engaging professionals such as the team at Bridge Legal & HR Solutions ensures that fairness obligations are met while protecting organizational interests.
A Shifting Legal Landscape
The evolution from Marentette to Carreau shows that procedural fairness is not static. It grows and adapts to new realities in workplace culture, administrative law, and employment relationships.
The courts are signaling that fairness is not only about giving respondents a voice but also about ensuring that complainants have a meaningful opportunity to participate in the process. Employers who fail to recognize this shift risk having their investigations challenged as procedurally unfair.
Bridge Legal & HR Solutions continues to monitor these developments closely. The firm’s dual expertise in employment law and HR practice allows it to interpret legal rulings through a practical lens, helping clients implement fair, transparent, and efficient investigation frameworks.
Learning More: Upcoming Training Session
For organizations seeking to understand these cases in greater depth, Bridge Legal & HR Solutions is offering a free session comparing Marentette v. Canada (2024) and Carreau v. Canada (2025). The program, which will be held on November 26, 2025 at 1:00 p.m., will explore the legal reasoning behind each decision and provide actionable strategies for meeting the courts’ evolving expectations.
Sign up here to learn some practical rules for designing investigation procedures and to receive input on drafting and implementing internal investigation checklists.
Conclusion
Procedural fairness remains the foundation of any credible workplace investigation. The lessons from Marentette and Carreau illustrate that fairness obligations are expanding in scope and depth, affecting every stage of the process.
Organizations that adapt quickly will not only meet legal standards but also reinforce trust and integrity in their internal procedures. Through its continuous monitoring of emerging case law and practical training programs, Bridge Legal & HR Solutions stands ready to help employers and investigators navigate this complex, evolving terrain.
To learn more about how Bridge Legal & HR Solutions can support your workplace, connect with us today through our contact form or call us at 647-794-5442 for a consultation.
