On October 5, 2026, the Federal Court released a decision dismissing an application for judicial review of workplace harassment investigation reports prepared under the Canada Labour Code’s (“Code”) Workplace Harassment and Violence Prevention Regulations (“Regulations”).
The Court held that it lacked jurisdiction to hear the application because the employer was not acting as a “federal board, commission or other tribunal” within the meaning of the Federal Courts Act (“FCA”), and therefore the investigation reports were not reviewable by the Court. The decision offers welcome clarity to federally regulated employers on the limits of judicial review in the harassment resolution process. Fasken’s Chris Pigott and Dina Zonoozi represented the employer in this matter.
Background
The applicant, a unionized employee, filed a harassment complaint after she was disciplined and had a related dispute with her managers. She elected to have an investigation carried out under the Regulations. The employer selected an external investigator from the list maintained by the Canadian Centre for Occupational Health and Safety. The investigator conducted the investigation independently, found the allegations unfounded, and delivered the reports to the employer, which provided copies to the parties and the workplace committee as required by the Regulations.
Rather than using the Internal Complaint Resolution Process under section 127.1 of the Code or pursuing grievance arbitration, the applicant applied to the Federal Court for judicial review of the reports and the resulting discipline. Among other positions, the employer argued that the Court lacked jurisdiction and that the application was premature.
The Federal Court’s Decision
In its decision, the Federal Court confirmed that judicial review is available only where there is an exercise of state authority of a sufficiently public character, and that the authority must be exercised by a “federal board, commission or other tribunal” as required by subsection 18.1(2) of the FCA.
The Court found that the employer's role in the investigation process was limited to selecting the investigator and distributing the investigation reports. The investigator similarly acted at arm’s length and prepared the reports without the employer's involvement or decision-making. Accordingly, the reports were not a decision or order of the employer, the employer was not acting as a “federal board, commission or other tribunal”, and the Court did not have jurisdiction to consider the applicant’s procedural fairness and reasonableness arguments.
The Court separately found that the Applicant's challenge to the discipline imposed on her was premature, since she had not yet exhausted her grievance rights under the collective agreement and the grievance was still ongoing. Having already found it lacked jurisdiction, the Court did not need to, and did not, decide whether the Applicant was also required to exhaust the Code's Internal Complaint Resolution Process before challenging the reports.
The application was accordingly dismissed.
Key Takeaways
The decision confirms several important points for federally regulated employers:
- An employer that selects an investigator under paragraph 27(1)(b) of the Regulations and distributes the resulting report is performing a limited statutory function, not making a decision subject to judicial review;
- Investigation reports prepared by an external investigator are not decisions or orders of the employer, and the employer is not a “federal board, commission or other tribunal” subject to judicial review when participating in the resolution process;
- Being federally regulated, or acting within a federally regulated process, is not by itself sufficient to ground the Federal Court’s judicial review jurisdiction;
- The Code’s Internal Complaint Resolution Process remains available for alleged contraventions of the Code or the Regulations, with directions appealable to the Canada Industrial Relations Board and its decisions reviewable by the Federal Court of Appeal; and
- Unionized employees challenging discipline must generally exhaust their grievance and arbitration rights before seeking relief from the courts.
Taken together, these principles limit the ability of complainants to bypass the statutory scheme and collective agreement processes by seeking judicial review of investigation outcomes directly to the Federal Court. They also confirm that federally regulated employers cannot generally be subject to judicial review as a result of their role in the harassment and violence resolution process under Part II of the Code.
For more information on this decision or on your organization’s obligations under the Workplace Harassment and Violence Prevention Regulations, please contact your usual Fasken lawyer or one of the authors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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