Whenever a serious incident happens in a workplace, the organization or employer should investigate the incident. Often, the organization or employer hires a lawyer to conduct the investigation in the belief that the investigation report will be privileged and, therefore, will not need to be shared with any of the parties to the incident.
Contrary to this common view, investigation reports prepared by lawyers are not automatically privileged. Whether the report is privileged will depend upon the terms of reference provided to the investigator, the content of the investigation report, and who the investigator spoke with during the investigation.
Two recent decisions, opposite conclusions were reached, demonstrate the case-by-case nature of this issue.
On the one hand…
In Resort Municipality of Whistler, an employee filed a harassment complaint against his Director and another employee. Normally, the Director investigated any complaints of workplace harassment; however since the Director was one of the subjects of the complaint, Whistler hired a lawyer to investigate the harassment complaint. The lawyer concluded that the complaint was filed in good faith, but was unsubstantiated. The employee requested a copy of the report under the British Columbia Freedom of Information and Protection of Privacy Act. Whistler refused to produce the report on the grounds that it was protected by solicitor-client privilege.
The Adjudicator in the office of the B.C. Information and Privacy Commissioner concluded that the report was privileged, for the following reasons:
- There report was by a lawyer, and presented to the client;
- Whistler demonstrated that it intended to keep the report confidential and that, once it was written, it was treated confidentially;
- The employee was told the report was confidential (and the fact that the employee never agreed with that statement was not relevant);
- The terms of the lawyer’s retainer clearly and expressly stated that the lawyer was providing legal advice; and
- Whistler did not waive the privilege by telling the employee that the complaint was unsubstantiated.
Importantly, the Adjudicator concluded that the entire report – not just the legal advice – was privileged. If a client hires a lawyer to do the work of an investigator only, then the report is not privileged. However, when a client hires a lawyer to investigate and provide legal advice, the entire report (even the interviews and documents obtained in the factual investigation stage) is privileged. In other words, both the legal advice and the information the lawyer uses to prepare the advice is privileged.
But on the other hand…
The importance of the wording of the investigator’s retainer is demonstrated in the second decision of Howard v. London(City). In this case, the Director of Social & Community Support Services for the City of London was dismissed for cause following an investigation conducted by a lawyer into the death of a resident at a City-owned nursing home. The Director sued for wrongful dismissal and, in the course of the lawsuit, brought a motion to compel the City to produce the investigation report. The Master hearing that motion ordered the City to produce the investigation report.
The Master focused on the terms of the lawyer’s retainer from the City. The City never expressly asked the lawyer for legal advice. The retainer instructed the lawyer to prepare a report containing “findings of fact and independent privileged recommendation, opinions and advice.” The retainer went on to specify four terms of reference for the investigation – none of those terms of reference referred to legal advice. Three of the four terms of reference referred to recommendations “in relation to the critical incident” (i.e. the death of a resident of the nursing home), and all four terms of reference included a review of existing City policies and procedures to determine whether they were sufficient from (among other things) an “administrative, operational, corporate, human resources and quality of care perspective.”
In light of the terms of the retainer, the Master concluded that the lawyer was not retained in his capacity as a lawyer. The Master concluded that “[w]hen a lawyer is retained to investigate and report on facts he is not acting in his capacity as legal adviser. Even when asked to provide advice, unless that advice is legal advice, no privilege protects the investigation.”
Practical Tips for Unions
Whether trying to get access to an employer’s report, or conducting their own investigation concerning a complaint by a member, unions should be aware that the mere fact that an investigation report was prepared by a lawyer does not make the report privileged. When obtaining a report from an employer, a union should insist upon seeing the terms of the retainer. If the retainer does not specifically or expressly request legal advice, the employer should be obliged to produce the report.
Similarly, if a union is investigating a member’s complaint, simply hiring a lawyer (or using in-house counsel) to investigate is not sufficient. The retainer or terms of reference should explicitly state that the lawyer is retained to provide legal advice about the complaint.
Finally, a union should be aware that even if the vast majority of a report is privileged, certain portions of the report may be “severed” and treated as non-privileged. For example, solicitor-client privilege (or “legal advice” privilege) does not protect the confidentiality of communications by third parties to a lawyer.1 Therefore, statements made “in confidence” to the investigator may have to be produced if the statements were provided by people who are truly third parties to the dispute (i.e. they are not employees or members of the union, as the case may be). Discussions between a lawyer and a third-party are only privileged if they are covered by litigation privilege; commonly, an investigation is conducted before there is any reasonable contemplation of litigation.
An investigation report by a lawyer is not automatically privileged. Unions should be careful when retaining investigators, and also careful not to accept an employer’s claim of privilege for an investigation report too easily.
1Slansky v. Canada (Attorney General), 2013 FCA 199 at paras. 69-70.