An employer may hire a lawyer to conduct a workplace investigation, especially when the issue is sensitive. One reason is to try to keep the investigator's notes, supporting documents and final report privileged, so they don't have to be disclosed to a third party.
Privilege is not guaranteed. In two preliminary arbitration decisions, one from Ontario and one from British Columbia, employers were ordered to disclose the investigating lawyer's report and supporting documents to the union. They show why you need to take care to preserve solicitor-client or litigation privilege when you retain a lawyer-investigator, during the investigation and afterwards.
Durham Regional Police Association v. Durham Regional Police Services Board
In Durham, the arbitrator ordered the Police Services Board to disclose a lawyer's investigation report, and the documents the lawyer obtained and drafted, to the police union in grievance proceedings.
The Board had retained the lawyer, with the Association's participation, to investigate two civilian members' harassment allegations. The mandate was an independent investigation, and the retainer letter didn't suggest the lawyer was to assess the Board's liability or give legal advice. With "so little evidence" that the report was prepared to provide legal advice, the arbitrator found that solicitor-client privilege did not apply.
The arbitrator also rejected litigation privilege. A document is protected by litigation privilege if its dominant purpose is litigation. Here, the dominant purpose was to investigate harassment complaints as required by statute and workplace policy, and the investigation began when litigation was a mere possibility. A grievance filed later doesn't make the report privileged after the fact.
Greater Vancouver Regional District v. GVRD Employees' Union
In GVRD, the employer retained a lawyer to investigate a bullying and harassment complaint against the grievor. The terms of reference required the lawyer to tell everyone interviewed that their information would be kept confidential, kept all correspondence between the lawyer and employer privileged and confidential, and had the lawyer prepare a privileged and confidential report with a legal opinion, provided to the employer for the purpose of legal advice.
The arbitrator found the lawyer was doing more than investigating: he was investigating in order to give legal advice. The report and related documents, including interviews with bargaining unit employees, were therefore privileged. Solicitor-client privilege cannot be "limited or abrogated because of the labour relations context in which it arises."
Even so, the arbitrator found the employer had waived privilege and ordered the documents produced. Only the client can waive privilege, and waiver requires that the client (1) knows privilege exists and (2) voluntarily shows an intention to waive it. Both were met: the employer knew about the privilege, and implicitly waived it by explicitly referring to and relying on the lawyer's findings and conclusions in the grievor's discipline letter.
Lessons for employers
- Before starting an investigation, consider with your counsel what its dominant purpose is and whether you intend to claim privilege.
- Done correctly, an investigation by a lawyer can be protected by solicitor-client privilege. An investigation by a non-lawyer usually isn't.
- Privilege can be waived. If you claim it, don't refer to the content of the investigator's report when you give reasons for discipline.
- If you're unsure how you can use the report, consult counsel.