Neutrality Isn’t Optional: How Investigators Undermine the Process When They Lose the Middle Ground

In our line of work, neutrality is more than a virtue, it’s a necessity. It’s the foundation upon which trust in an investigation is built. Without it, the entire process is compromised. Courts, arbitrators, and oversight bodies across Canada have made one thing clear in recent years: if you can’t ensure neutrality, don’t expect your findings to survive review. 

As investigators, whether working in-house or externally, we are entrusted with navigating sensitive, often high-stakes disputes. But our competence means little if the process is tainted by real or perceived bias. Two recent Canadian cases serve as powerful reminders of what happens when neutrality fails. They’re not cautionary tales from decades past they’re happening now, and they demand our attention. 
 
Neutrality: What It Really Means 

Neutrality is not the absence of emotion, but the presence of discipline. It means you don’t take sides. You don’t pre-judge credibility. You don’t allow personal relationships, past affiliations, or even unconscious biases to influence your decisions. Neutrality must be both actual and apparent if any party believes the process is stacked against them, your findings will be questioned, and rightly so. 

Case #1: Toronto Metropolitan University – The Danger of Dual Roles 

Decision: Arbitrator Mark Hart, 2024 CanLII 109523 

In 2024, an arbitration involving Toronto Metropolitan University (TMU) revealed how even the use of external investigators can backfire if neutrality isn’t structurally protected. 

What Happened 

TMU engaged external lawyer-investigators to conduct harassment and human rights investigations. These investigators weren’t just neutral fact-finders they were also under legal retainer with the university. The agreements described their role as providing “legal advice” and producing privileged reports. 

This created a serious conflict. The external investigators owed TMU a duty of loyalty as legal counsel, which was fundamentally at odds with the expectation that they act as independent and impartial investigators.

 

Arbitrator’s Finding 

Arbitrator Hart concluded that there was a reasonable apprehension of bias. He emphasized that neutrality requires not only independence in fact, but the appearance of independence to a reasonable outside observer. 

The arbitration highlighted that even well-established external investigators can undermine the integrity of a process if they serve dual roles. Acting as both advisor and investigator, no matter how competently, is incompatible with the fairness owed to complainants and respondents. 

Arbitrator Hart quoted Hena Singh from her publication, “A Practical Guide to Conducting Workplace Investigations”, which stated:  

“Contrary to the traditional advocacy role of a lawyer, the role of a workplace investigator is to remain impartial and neutral while gathering and synthesizing evidence to make factual findings, not to provide legal advice. If the employer is seeking legal advice on the investigation or the findings which flow from the investigation, this legal advice should not be sought from the workplace investigator but instead should be sought by another lawyer. A workplace investigator should not wear both hats of investigator and advocate. There is a strong potential for conflict between these two roles, as the role of a workplace investigator is to be neutral where the role of an advocate is inherently not neutral.” 

Lessons Learned 

• External doesn’t mean neutral if there’s a built-in loyalty to one party. 

• Investigators must never act under a solicitor-client relationship while conducting a fact-finding process. 

• Transparency about the investigator’s role, obligations, and scope is essential. 

 
Case #2: Marentette v. Canada (Attorney General), 2024 FC 20 

Decision: Federal Court of Canada, January 2024 

In a regulatory context, the Marentette case offers a stark example of how flawed investigative procedures—including issues of neutrality—can lead to the entire process being thrown out. 

What Happened 

Marentette, a Canada Border Services Agency (CBSA) officer, filed a complaint of workplace violence and harassment, alleging a toxic work environment over 25 years. The complaint was filed in 2020, but no investigation began for over a year. 

When it finally did begin, the investigator (under a CBSA program) failed to interview all key supervisors, withheld witness statements from the complainant, and did not give her the opportunity to respond to crucial evidence or preliminary findings before issuing the final report. 

Federal Court’s Decision 

Justice Fothergill ruled that the investigation violated procedural fairness, especially given the seriousness of the allegations. The complainant should have been able to: 

• Review and respond to the respondents’ statements. 

• Challenge the findings prior to finalization. 

• Expect timely and fulsome investigative steps. 

The court quashed the investigation report and ordered the CBSA to start again—with a new investigator. 

Lessons Learned 

• Neutrality requires a balanced and timely process, not just a neutral person. 

• Failing to engage the complainant fairly throughout the process casts doubt on the entire report. 

• When investigators control evidence flow and exclude parties from participating, the court will step in. 

Case #3: Ontario Power Generation v. Society of Energy Professionals, 2020 CanLII 142 (ON LA) 

Decision: Arbitrator Christopher Albertyn 

This Ontario labour arbitration is a classic case of how investigative shortcuts and framing errors, even with good intentions, can lead to a finding of unfairness and bias. 

What Happened 

An OPG employee was investigated for inappropriate behaviour. The investigation suffered from multiple flaws: 

• The Respondent wasn’t given the specifics of the complaint or text messages before his interview. 

• Interview questions were vague and open-ended, preventing meaningful responses. 

• A senior HR leader’s notes suggested a pre-judged outcome (“We expect to simply identify the inappropriateness…”). 

• One witness’s evidence was misrepresented to the respondent. 

• The complainant’s statement was not critically examined. 

Arbitrator’s Finding 

The arbitrator ruled the investigation was procedurally flawed and unfair. The Employee was reinstated after a suspension, with the arbitrator acknowledging both misconduct and the serious failings in how it was investigated. 

Lessons Learned 

• Respondents must be given clear, specific allegations and a chance to respond meaningfully. 

• Interviewing must be deliberate, not a check-the-box exercise. 

• Prejudgment or poorly documented assumptions cripple credibility. 

• Misrepresenting or selectively presenting evidence is a neutrality violation. 

 
Practical Takeaways for Ensuring Investigator Neutrality 

Investigation Element	Best Practice	Failure Example
Investigator Role	Use third parties with no advisory ties to employer or client. Avoid dual solicitor-investigator roles.	TMU (2024) – Legal retainer tainted neutrality.
Disclosure of Evidence	Share all relevant allegations and documents before interviews.	OPG (2020) – No prior notice to Respondent.
Timeliness & Scope	Act promptly, define scope clearly, and involve all key witnesses.	Marentette (2024) – Delayed & incomplete probe.
Questioning Approach	Ask targeted, specific, neutral questions—don’t “fish” or lead.	OPG (2020) – Vague, ineffective questioning.
Open Mindset	Avoid assumptions or prewritten outcomes. Treat all evidence critically and fairly.	Shoan (2016) – Investigator had closed mind.
Respondent’s Right to Reply	Allow parties to respond to preliminary findings and challenge credibility assessments.	Marentette (2024) – No chance to reply.
Documentation Integrity	Preserve notes, accurately reflect testimony, and avoid spin.	OPG (2020) – Misrepresented witness info.
Transparency	Ensure parties understand the process and receive updates.	TMU (2024) – Privileged process lacked clarity.

 

A Pattern Worth Noticing 

These cases differ in context, but they reveal the same themes: 

• Processes that appear neutral on paper can still fail in practice if investigators act with undue loyalty to one side or use exclusionary tactics. 

• External investigators must hold themselves to a higher standard, as their independence is often the very reason they’re retained. 

• Timeliness, transparency, and fairness are non-negotiables in maintaining the legitimacy of investigative outcomes. 

What Neutrality Demands in 2025 (and beyond) 

In an era of heightened scrutiny, investigators, especially those of us working externally, need to build neutrality into every layer of our work. That means: 

Before the Investigation 

• Disclose past relationships or affiliations that may raise concerns. 

• Confirm no legal representation or retainer conflicts exist. 

• Define a clear scope of investigation and stick to it. 

During the Investigation 

• Allow both parties full participation: access to statements, ability to reply, presence of support persons. 

• Keep detailed notes and avoid any conduct that could be construed as dismissive, condescending, or overly sympathetic to one side. 

• Don’t engage in credibility assessments until all evidence has been collected and tested. 

After the Investigation 

• Circulate preliminary findings and offer a right of reply. 

• Use neutral language in reports – avoid terms like “victim” or “guilty” before conclusions are fully drawn. 

• Document every step for transparency and audit-ability. 

The Benard + Associates Standard 

At Benard + Associates, we’ve conducted thousands of investigations across regulated professions, corporate workplaces, and public institutions. We’re proud to say: not one of our investigations has ever been overturned due to findings of bias or lack of neutrality. 

Why? Because we build neutrality into every stage of the process not just as a principle, but as a practice. We use structured protocols, clear communication, and rigorous self-monitoring to ensure every party can trust in both our conduct and our conclusions. 

Final Word 

Neutrality isn’t about staying emotionally detached. It’s about being professionally disciplined. It’s about designing and executing investigative processes where everyone, including complainants, respondents, witnesses, arbitrators, and judges, can see that fairness was not just promised but delivered. 

Let these recent cases serve not as cautionary tales, but as calibration points. Because when neutrality fails, everyone loses, and when it’s done right, everyone, even in disagreement, can respect the result.