A recent case out of Quebec discusses the level of procedural
fairness that may be owed during a workplace investigation for a
In Ditomene c. Boulanger,1 two employees at
a CEGEP (a public school) filed a complaint of psychological
harassment under Quebec law against their superior, Mr. Ditomene.
The CEGEP retained Ms. Boulanger as an external investigator.
During the course of the investigation, Mr. Ditomene refused to
cooperate because he felt Ms. Boulanger was not following the
CEGEP's harassment policy. However Ms. Boulanger continued her
investigation and, based on its outcome, the CEGEP terminated Mr.
Ditomene. He sued Ms. Boulanger under Quebec's civil law
version of negligence, alleging breaches of procedural fairness in
the investigation process as the faults which caused him harm.
Because Ms. Boulanger's contract as an external investigator
was with a public institution, the Court held that she was under a
duty to follow the judicial concept of "procedural
fairness". The Court also noted that Ms. Boulanger's
contract referred to the CEGEP's harassment policy, which
itself stated that investigators had a duty to "ensure the
fairness of the process" and included a non-exhaustive list of
ways to achieve this fairness.
How Was Procedural Fairness Breached?
Based on this, the Court found that Ms. Boulanger breached her
duty to follow procedural fairness in several ways:
Ms. Boulanger did not provide Mr. Ditomene with a full copy of
the complaints made against him. This clearly violated the
CEGEP's harassment policy, and also violated the general
principle of fairness that Mr. Ditomene was entitled to know the
allegations against him.
Ms. Boulanger did not provide Mr. Ditomene with the testimonies
of the complainants or the witnesses. This also affected Mr.
Ditomene's ability to know the allegations against him.
The internal co-investigator was replaced during the course of
the investigation. This violated the principle that "[she or
he] who hears must decide."
Ms. Boulanger did not provide Mr. Ditomene with sufficient
notice of investigation meetings, to the point where Mr. Ditomene
was unable to attend several meetings.
Ms. Boulanger's report was deficient, as it did not contain
any analysis of the evidence.
The Court then considered how these violations actually affected
Mr. Ditomene, concluding that Ms. Boulanger's conduct could not
be the cause of Mr. Ditomene's termination, as he would likely
have been fired even if the investigation had been fair. As a
result, Mr. Ditomene's damages were limited to C$3,000 for the
anxiety and stress caused by the unfair investigation.
What Does this Mean for Employers?
On one hand, because Ditomene was decided under the
Civil Code of Quebec, it has minimal precedential value
outside of that province.
However, on the other hand, the Court relied heavily on the
judicial concept of "procedural fairness", which applies
to public institutions across Canada. As a result, though the
underlying cause of action may not translate outside of Quebec,
Ditomene may still speak to the level of procedural
fairness owed by public organizations and their external
investigators when carrying out workplace investigations.
We understand that the case has been appealed to the Quebec
Court of Appeal, though no hearing date has been set.
1 2013 QCCQ 842.
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guide to the subject matter. Specialist advice should be sought
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