When the investigation becomes the issue

O’Driscoll v Suncor Energy Inc., 2026 ABKB 43, is a useful reminder that the strength of an employer’s disciplinary decision often depends on the quality of the investigation that precedes it. Where an employer alleges just cause, courts will examine not only the alleged misconduct, but also whether the investigation was fair, balanced, and supported by reliable evidence.

Michael O’Driscoll had about 11 years of service. He was 55 when Suncor terminated him. He worked as a shift supervisor and managed a sizeable, unionized workforce. His duties included safety oversight, work assignments, and field supervision.

In or around January 2021, O’Driscoll’s supervisor reviewed the GPS data of his truck. The data showed that his truck had stayed in one location for a lengthy period during an overnight shift. Suncor first treated the data as a supervision concern. It later alleged that O’Driscoll had slept during the shift.

Suncor conducted an internal investigation, which concluded that O’Driscoll had slept on the job. Suncor then relied on the Internal Investigator’s finding and took the position that it had just cause for termination.

However, the Alberta Court of King’s Bench found serious flaws in the investigation’s conclusions. The court noted that the investigator did not properly assess the GPS evidence, overlooked information showing that other supervisors were with or near O’Driscoll during parts of the shift, and relied selectively on hearsay evidence. The internal investigator also failed to preserve dispatch or radio records that may have supported O’Driscoll’s explanation.

The court found that Suncor lacked evidence that O’Driscoll slept or abandoned his duties and therefore failed to prove just cause for termination. The court described the investigation as showing “tunnel vision.”

The court awarded a 16-month reasonable notice period. The damages included salary, benefits, shift payments, location index amounts, and unscheduled overtime.

After mitigation efforts were taken into account, the court awarded wrongful dismissal damages of $163,909.35.

Perceived bias and the risk of tunnel vision

The decision illustrates how perceived bias can affect an investigation. Unconscious bias does not require bad faith. It can arise when an investigator forms an early theory and then gives greater weight to evidence that supports it. Perceived bias is different. It focuses on how the process appears to a reasonable observer. Both unconscious and perceived bias can damage an objective, fair investigation.

In O’Driscoll, the Court’s “tunnel vision” finding captures these concerns. The investigator accepted information that supported the sleeping allegation but discounted or failed to pursue information that could have supported O’Driscoll’s explanation. Further, she did not properly test the GPS evidence. She also did not preserve radio or dispatch records. Those choices created more than an evidentiary problem. They made the investigation appear outcome driven.

Employers can reduce these risks by building safeguards into the process. In particular, investigators should:

• Identify competing explanations early
• Test both inculpatory and exculpatory evidence, including evidence that supports the complaint and evidence that supports the respondent’s explanation
• Document the reasons for accepting or rejecting key evidence
• Secure and preserve documentary evidence at the outset, including GPS data, radio records, dispatch logs, notes, emails, and other key records.
• Assess hearsay evidence cautiously and assign it limited weight, where appropriate
• For internal investigators, it is important to separate the fact-finding role from the disciplinary decision wherever possible.

While these steps do not guarantee a perfect investigation, they help show fairness, independence, and discipline in the reasoning process.

Who should investigate?

O’Driscoll also highlights a practical question: who should investigate?

The answer matters. A good investigation supports a defensible decision. A flawed one can sink it.

Internal investigations can work well in many circumstances: they are often faster and more cost-effective. Below are some circumstances in which an internal investigator may be appropriate:

• The allegations are straightforward and low risk
• The likely outcome does not include termination for cause or litigation
• The investigator is trained, neutral, and uninvolved in the events
• The matter does not require specialized legal or technical analysis
• The employer can show that the investigator had enough independence from the decision-maker and the people involved.

When to consider an external investigator

• The employer may terminate for cause, or the litigation risk is high: High-stakes discipline requires a rigorous and defensible process.
• The complaint involves senior leaders or HR: external investigators help protect independence when internal actors are involved.
• The case turns on credibility in the absence of witness or documentary evidence: external investigators can add objectivity when the parties’ evidence does not align.
• The allegations are complex or sensitive:  harassment, discrimination, reprisal, violence, and regulatory risks often justify external review.
• The workplace history is difficult: prior bullying complaints, medical leaves, accommodation issues, or distrust can make an internal process vulnerable. Even a well-versed internal investigator may appear aligned with management and be perceived as lacking neutrality.

To summarize, employers may consider asking several questions before choosing an investigator, such as:

• What consequence could the employee face?
• Who is implicated?
• Could anyone reasonably allege bias?
• What evidence must the employer preserve?
• Does the investigator have the right training and authority?
• Could the matter reach litigation, arbitration, or a regulator?

The primary takeaway from O’Driscoll is simple: employers do not need a perfect investigation, but they need a reasonable, fair, balanced, and a well-documented one. When the potential outcome is just cause for termination, the investigation must withstand close scrutiny. O’Driscoll reminds us that courts will look beyond the employer’s conclusion and examine how the employer reached it.

Sreya Roy is an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.