When Investigators Need "No Less Serenity Than A Judge": What Carreau V. Canada Quietly Signals To HR Leaders

Those who manage internal investigations generally want workplace investigations to feel fair. That usually means making sure people feel heard, allowing input, and trying to keep the process collaborative. However, there can also be an urge to treat investigation reports as collaborative documents that can be substantively refined before they are treated as truly final.

The Federal Court's decision in Carreau v. Canada (Attorney General), 2025 FC 1537, suggests that this instinct, while understandable, may constitute a legal risk.

The case arose from an investigation in the federal sector. The employer retained an external investigator to examine allegations of workplace harassment. At the end of the process, the investigator delivered a report to the employer's designated recipient. The investigator concluded that the Responding Party had engaged in harassment and made several recommendations.

The report was initially treated as final and shared with the Responding Party as such. Shortly afterward, the employer became concerned about procedural fairness, in light of earlier case law, particularly Marentette¹, and decided that the parties should be given an opportunity to comment on the report before it was finalized. The designated recipient wrote to the Responding Party and explained that the report should now be viewed as “preliminary,” inviting comments.

The investigator disagreed and took the view that the parties had already been given the opportunity to hear the case against them and respond. In her view, inviting comments at the conclusion stage would undermine the integrity and neutrality of the process. After months of exchanges with the employer, she maintained that the report was final and refused to accept further submissions.

The employer then wrote to the Responding Party stating that it believed the investigator's refusal to accept comments amounted to a procedural fairness defect. Despite that, the employer also stated that it was accepting and implementing the investigator's recommendations, while committing to address the perceived procedural issue.

The Responding Party sought judicial review and asked the Federal Court to quash both the employer's decision letter and the investigation report, arguing that procedural fairness had been denied.

The Court rejected that argument and sided clearly with the investigator. The Court accepted that the investigator had correctly understood her role and that asking the parties to comment on her final conclusions would have undermined the independence of the process. With strong language, the Court argued that revendicating such a right in the context of this investigation “betrays a fundamental misconstrual of the independent, third-party investigator process” (para 65).

The Court also clarified the limits of what “full answer and defence” means in this context. It confirmed that parties absolutely have the right to know the case against them and to respond to unfavourable statements during the fact-gathering stage (as discussed in Marentette). However, the Court stated that this “right to comment and bring both oral and written evidence to the investigator is a strict procedural right at the stage of meeting the case made against one, but not at the stage of the investigator's ultimate conclusions and recommendations” (para 65).

The Court went further and stated that allowing parties to intervene at that stage is “antithetical to the very notion of an unbiased, neutral and impartial investigation” (para 73). It also observed that, “(…) the collecting of individual, subjective versions of the facts is one thing. Drawing conclusions from that mass of information is quite another. At the second stage of the process, a third-party investigator requires no less serenity than a judge” (para 72).

That comparison is important. Judges do not circulate draft decisions for comment, and they are insulated from outside pressure for a reason. The Court's message is that investigators, once they are performing the decision-making function, deserve similar protection.

In this case, the Court found that procedural fairness had in fact been satisfied. The Responding Party had received a notice of the allegations, a summary of the evidence, had the opportunity to annotate it, and participated in a private interview. The Responding Party also submitted extensive documents afterward and reviewed and corrected the investigator's draft interview notes.

In many ways, the employer in this case was trying to be careful. It was trying to avoid what it believed to be an error, and it was trying to protect fairness. But the decision shows how easily good intentions can drift into territory that courts view as inappropriate.

Inviting late-stage comments, treating final reports as drafts, allowing anxiety about case law to reshape an investigator's role, are all very human reactions. Carreau suggests, however, that they can also undermine the very independence the law is trying to protect.

The message from the Court is quiet but clear: once the evidence has been gathered and the parties have been heard, the investigator needs space, and insulation, to think and to make a final decision. The Court also underlined the importance of protecting the investigator's neutrality when an employer pays an external firm to conduct an investigation, particularly when senior leaders are involved: “There is also the fact that the employer itself is the paying customer of the investigator (or his firm), which constitutes yet another reason to shield the investigator from the type of situation that occurred in the present file, particularly in a case where, as here, the responding party is a very senior executive” (para 75).

Takeaways

• Employers should resist the instinct to reopen an investigation report once it is delivered. If fairness concerns exist, they should be addressed by improving processes up front, not by inviting post-facto commentary.
• Organizations may want to revisit their investigation protocols to ensure that any opportunity to respond is clearly confined to the evidence-gathering stage.
• Employers should build internal awareness, particularly among senior leaders, about the limits of their role once an external investigator is engaged. Protecting the investigator's independence is part of protecting the integrity of the entire process

Footnote

1. Marentette v Canada (Attorney General), 2024 FC 676 (CanLII).

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