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Privilege Uncertainty for Investigators

By: Jeffrey Percival (The Lawyers Weekly –  May 2012)

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With the coming into force of Bill 168 in June, 2010, Ontario workplaces are now required to implement formal policies to deal with violence and harassment.

As part of these requirements, employers must also take active steps to investigate allegations of harassment or violence.

Often, when a complainant approaches an employer to assert a claim of harassment by another employee, management decides to retain outside legal counsel to undertake a fact-finding investigation. Once this is completed, outside legal counsel prepares a report for the employer to consider appropriate consequences. Recently, an Ontario arbitrator considered whether a fact-finding investigation undertaken by a lawyer was automatically privileged because it was prepared by legal counsel.

In North Bay General Hospital v. Ontario Nurses’ Association, 2001 CanLII 68580, the employer hospital retained an outside lawyer to investigate an employee complaint of harassment and bullying.

The harassing employee was demoted after the outside lawyer discovered facts to ground the complaint. When the employee grieved the discipline, her union requested a copy of the investigation report provided to the employer. The hospital refused on the grounds the report was solicitor-client privileged.

The matter proceeded to arbitration, where arbitrator Jasbir Parmar considered whether the fact that the investigator was a lawyer was sufficient to create a solicitor-client privilege for the investigation report itself. She noted that the lawyer retained by the hospital was specifically retained as an “independent investigator” whose role was to conduct an investigation, consider the allegations set out in the complaint and find out what actually transpired.

Given the nature of the lawyer’s retainer, the arbitrator refused to distinguish him from a non-lawyer investigator. Parmar added that since the lawyer was retained to investigate events and make findings of fact, she saw no reason “to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.”

The hospital also tried to assert that the lawyer’s investigation report was not relevant and should not be producible. The hospital’s argument was undercut by the fact that it referenced the report as the basis for the imposed disciplinary measures. As well, since the union had alleged the disciplinary measures were motivated by the grievor’s past union involvement, the arbitrator concluded that the union was entitled to all documents relevant to the hospital’s actions toward the grievor, including the investigation report and all communications between the investigating lawyer and the hospital.

In light of this recent decision, how best can employer counsel help clients protect sensitive investigation documents from automatic production to the parties?

First, although there is unsettled jurisprudence on point, if the employer elects to have outside counsel investigate the complaint with a view to that counsel also  providing legal advice on appropriate post-investigation measures, the outside counsel should be retained specifically for the purpose of both investigating the facts and providing legal advice. The outside lawyer should issue a formal retainer letter to the employer that sets out that the investigation is being undertaken to get the facts necessary to provide legal advice to the employer.

Second, if the employer elects to have the same outside counsel investigate and provide legal advice based on the investigation, the employer should ensure they do not attempt to influence the conduct of the investigation itself through e-mails, phone calls and so on. In fact, prudence suggests any communications between the employer and the retained investigating counsel demonstrate the company’s recognition of the need to avoid any appearance of interference in a fair and impartial investigation.

Third, even if the employer is asserting solicitor-client privilege over the investigation report, there may be important facts that the employer wants to make sure are revealed to the parties to the complaint. Not all investigation reports will have to remain privileged, but it is nonetheless crucial that the employer have first asserted privilege before agreeing to waive the privilege in the event of a factually beneficial report.

The enhanced requirements on employers under the Bill 168 amendments to the Occupational Health and Safety Act promise to increase significantly the stakes involved in workplace investigations. Should a company wish to have outside counsel investigate complaints and provide legal advice on potential consequences, it should proactively retain that counsel primarily for the legal advice, with the fact investigation a necessary element of providing such advice.


Jeffrey Percival is a member of the Labour and Employment and Commercial Litigation Practices at Pallett Valo in Mississauga.

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