Ensuring Procedural Fairness: A Case Study of Toronto Metropolitan Faculty Association v. Toronto Metropolitan University

The principles of independence and impartiality are fundamental to procedural fairness in workplace investigations. The arbitration decision in Toronto Metropolitan Faculty Association v. Toronto Metropolitan University (2024 CanLII 109523) underscores the importance of maintaining these principles when addressing workplace complaints. This case, decided by Arbitrator Mark Hart, examined whether the university’s practice of engaging external lawyer-investigators violated its statutory and contractual obligations. The ruling has far-reaching implications for legal, governance, and Inclusion, Diversity, Equity and Anti-Oppression (IDEA) practices, setting a precedent for how institutions must navigate the balance between efficiency and fairness.

Case Background

The grievances in this case were filed by the Toronto Metropolitan Faculty Association (TFA) on behalf of two faculty members, J.M. and E.V.D.M., against Toronto Metropolitan University (TMU). These grievances challenged the university’s existing practice of retaining external investigators who also acted as legal counsel for the university. The TFA argued that this dual role compromised the impartiality required under the collective agreement, the Ontario Human Rights Code, and the Occupational Health and Safety Act (OHSA).

The specific issue arose when complaints against the professors were investigated by external lawyer-investigators who maintained a solicitor-client relationship with the university. The TFA contended that this relationship inherently conflicted with the investigators’ duty to conduct independent and impartial inquiries, thereby creating a reasonable apprehension of bias.

The arbitration raised two central issues:

1. Whether the university’s use of lawyer-investigators violated the impartiality and independence required under the collective agreement, the Human Rights Code, and the OHSA.
2. Whether the dual role of these investigators created a reasonable apprehension of bias, undermining the procedural fairness of the investigations.

Relevant statutory and contractual frameworks included Article 3.1 of the collective agreement, which mandates the fair and reasonable exercise of management rights, section 32.0.7(1)(a) of the OHSA, and the Human Rights Code, which requires good faith and unbiased investigations into workplace complaints.

Arguments Presented

The TFA argued that the university-appointed lawyer-investigators compromised the integrity of the investigations. It asserted that the solicitor-client relationship between the university and the investigators inherently conflicted with the neutrality required for impartial investigations. Drawing on case law such as Baker v. Canada (Minister of Citizenship and Immigration) ([1999] 2 SCR 817), the TFA emphasized that procedural fairness requires not only actual impartiality but also the appearance of fairness for both parties.

Conversely, the university maintained that external investigators were qualified professionals capable of conducting unbiased investigations despite their dual roles. The university argued that its practices aligned with standard institutional protocols and that no concrete evidence of bias or unfairness had been presented.

Decision and Reasoning

Arbitrator Hart ruled in favour of the TFA, concluding that the university breached its obligations under the collective agreement and the OHSA. He found that the investigations were neither impartial nor independent, as required under statutory and contractual frameworks.

Hart’s reasoning was anchored in two key findings:

1. Conflict of Interest and Perception of Bias: The retainer agreements explicitly framed the investigators’ roles as providing legal services, thereby establishing a solicitor-client relationship. Hart noted that this relationship inherently conflicted with the independence required of an investigator. Even if no actual bias existed, the perception of bias was sufficient to undermine procedural fairness. Hart observed, “A reasonable and informed observer could conclude that the dual role of the investigator raises legitimate concerns about impartiality.”
2. Violation of Statutory and Contractual Obligations: The arbitrator found that the university’s actions violated Article 3.1 of the collective agreement, which obligates the institution to exercise management rights fairly and reasonably. In the case of E.V.D.M., Hart also found that the university breached section 32.0.7(1)(a) of the OHSA by failing to conduct an appropriate investigation.

Although no immediate remedies were ordered, the arbitrator retained jurisdiction to address potential impacts on J.M.

What Does This Mean?

This decision is a pivotal moment for dispute resolution practices, particularly in the post-secondary sector of Ontario, and has critical implications for workplace investigations and procedural fairness in institutional governance. The case highlights the existing bias embedded into internal dispute resolution practices and emphasizes the risks associated with dual roles in workplace investigations. Legal counsel acting as investigators must ensure a clear separation between their advisory and fact-finding functions to avoid conflicts of interest.

Furthermore, the case brings forward a very important conversation about the intersection of IDEA principles and Alternative Dispute Resolution. Systemic bias exists and is embedded into all practices until we take a moment to pause and reflect. A standard has yet to be set around how investigators are expected to approach the existence of bias, and it is clearly becoming a point of contention.

This case is also a win for the IDEA professionals who have been advocating for a more just mediation process. Those who have been working in these roles know a significant shift has taken place. More systemic issues are being brought to the forefront, and it calls into question how bias will be addressed as those grievances are explored. 

Institutions must carefully structure their investigative processes to ensure compliance with legal obligations and uphold the principles of fairness. This includes avoiding relationships or practices that could create an apprehension of bias, as perceptions are just as significant as actual impartiality in maintaining procedural fairness. 

By embedding IDEA principles and bias-conscious practices into investigations and ADR processes, institutions can foster trust, enhance procedural fairness, and reduce systemic inequities. These approaches align with the principles underscored in Toronto Metropolitan Faculty Association v. Toronto Metropolitan University and position institutions to better address workplace complaints in a manner that is equitable and just.

The ruling in Toronto Metropolitan Faculty Association v. Toronto Metropolitan University reinforces the importance of impartiality and independence in workplace investigations. By addressing the risks associated with dual roles and emphasizing the perception of fairness, Arbitrator Hart’s decision provides a roadmap for institutions seeking to balance efficiency with procedural integrity.

As organizations continue to navigate complex governance challenges, this case serves as a reminder that fairness is not merely a legal requirement—it is a cornerstone of trust and equity within any institution.

References 

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, https://canlii.ca/t/1fqr3. 

Toronto Metropolitan Faculty Association v. Toronto Metropolitan University, 2024 CanLII 109523 (ON LA), https://canlii.ca/t/2024canlii109523. 

Ontario Human Rights Code, RSO 1990, c H.19, https://www.ontario.ca/laws/statute/90h19. 

Occupational Health and Safety Act, RSO 1990, c O.1, https://www.ontario.ca/laws/statute/90o01. 

                       

Aaron Sidhu

Aaron Sidhu is a young professional with an LLB from the University of Leicester and an ADR Graduate Certificate from Humber College. He is a Qualified Mediator and is passionate about providing inclusive restoration services to diverse communities. Aaron is passionate about employment law, workplace restoration, human rights law, and… MORE >

                       

Jessie Sidhu

Jessie Sidhu is recognized for her roles as a storyteller, creator, educator, and visionary. With a focused commitment to mental health advocacy and equity work, she has delivered impactful speeches on global platforms, highlighting the intricacies of intersectional wellness and offering valuable support to organizations worldwide. Jessie's expertise extends to… MORE >