Investigations by lawyers not necessarily protected by solicitor-client privilege
October 29, 2015 By: Jim Anstey Read Time: 3 minutes
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The recent labour arbitration decision Durham Regional Police Association v Durham Regional Police Services Board has confirmed that workplace investigations are not necessarily protected by solicitor-client privilege. The Ontario arbitrator ruled that the report of a lawyer, who was retained to investigate allegations of workplace harassment, can be adduced as evidence in a grievance arbitration brought by the union on behalf of the complainants. The alleged perpetrator in this case was a manager in the Planning department of the Durham Regional Police Service (“DRPS”). The complainants were two civilian employees who worked under that manager.

DRPS had a workplace harassment and violence policy that required complainants to report harassment to either their supervisor or the Respect in the Workplace Committee. Given their supervisor was the very subject of the complaints, the complainants reported the harassment to the Committee. The Committee consulted with the union about who should investigate the complaints and it was agreed that an independent lawyer would be retained for this purpose.

A number of interviews were conducted over several months and the lawyer investigator prepared a report of her investigation, including her conclusion that the complaints were founded. DRPS responded to the complainants in writing to confirm that they had indeed been subjected to workplace harassment. With respect to the employer’s intended remedy, the letter provided as follows:

…Chief Constable Ewles has been apprised of the findings and has authorized corrective measures with the goal of restoring the work environment for all parties involved. Such corrective measures shall include:

1. Mr. [xxx]’s participation in an educational program(s) addressing Respect in the Workplace best practices including application of the provisions of the Ontario Human Rights Code and Bill 168; and;

2. Mr. [xxx]’s participation in an educational program(s) supporting his supervisory skills including best practices of performance management; and;

3. Disciplinary action against Mr. [xxx], in accordance with the Civilian Discipline Directive, in the form of a written warning.

The letter in question also warned the complainants that the investigation and outcome were to be kept confidential.

The union grieved the employer’s response. In particular, it alleged that in addition to the use of foul language in the workplace, the alleged perpetrator was “publicly and privately making disrespectful, insulting and demeaning comments about members in his unit regarding their work, personal lives, sexuality, appearance, disabilities, etc.”. The union sought protection for affected employees such that they would no longer have to work with the alleged perpetrator, a requirement for more senior managers to complete workplace harassment training and general damages for affected employees up to $50,000.

The issue of whether the investigation report and supporting documents were admissible at the arbitration was dealt with as a preliminary matter. The employer alleged that the report was protected from disclosure because it was subject to solicitor-client and/or litigation privilege. It argued that the lawyer investigator was retained because they wanted advice about how to manage a difficult affair. In addition, the employer argued that the “dominant purpose” of the investigation was to obtain a factual account about what happened, to understand its legal risk.

The arbitrator disagreed, ordering the report and all supporting documents to be produced. In particular, the arbitrator noted that the employer had an obligation pursuant to both statute and a workplace policy to conduct an investigation into complaints of workplace harassment. As such, the dominant purpose of the investigation was not to assess or manage legal risk, but rather to respond to a complaint made pursuant to a statutorily imposed policy/program. In addition, the arbitrator found that the claim of solicitor-client privilege was also weak. The retainer letter with the lawyer investigator clearly showed that the purpose of the lawyer’s retainer was to conduct a workplace investigation, not to provide legal advice.

The arbitrator acknowledged that some legal advice was provided to DRPS after the investigation was completed and that such advice should be protected from disclosure. As a result, the arbitrator ordered that any documents related to the advice provided by the lawyer after her report was finalized must be removed from the subpoena. The union was therefore free to serve a somewhat-amended subpoena on the lawyer investigator in anticipation of the grievance arbitration.

The following passage from the arbitrator’s conclusion is insightful:

There is so little evidence that the Investigation Report was prepared for the purposes of providing legal advice or in contemplation of litigation that if I were to find that it was privileged it would effectively mean that any time a solicitor is used for an independent harassment investigation an employer could claim privilege over the resulting report and related documents. That is not consistent with the jurisprudence or with good labour relations.

The Durham decision is also reminiscent of an Ontario Superior Court decision rendered earlier this year, Howard v. London (City). In that case, a manager was fired after the employer obtained the results of an investigation into the death of a long-term care resident. The employer alleged the report and supporting documents were not producible because the investigator was a lawyer, and so solicitor-client privilege was attached to them. The Court found, however, that the work performed by the lawyer could have been performed by a non-lawyer and, as a result, the documents were producible. Our blog post on Howard can be found here.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2019 Nelligan O’Brien Payne LLP.

Service: Labour Law