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Investigation Reports Prepared by Lawyer Retained to Investigate Workplace Issues Alone do not Attract Solicitor Client Privilege

Unlike other professional relationships, communications between a solicitor and client made for the purpose of providing legal advice or to assist the client in preparing for litigation maintain permanent confidentiality/privilege under the law.  However, as a recent arbitration decision demonstrates, the veil of confidentiality between a solicitor and client may not exist where an employer hires a law firm for the sole purpose of investigating workplace misconduct, despite the employer’s customary expectations about solicitor client communications.

In North Bay General Hospital (“Hospital”) v. Ontario Nurses' Association (“ONA”), ONA grieved discipline given to a nurse for conduct that the Hospital characterized as bullying and harassment.  ONA sought production of the report of an independent investigator hired by the employer for the sole purpose of investigating the claims of bullying and harassment against the grievor.  The Hospital argued that because the investigator it hired was a lawyer, the investigation report was solicitor-client privileged and therefore need not be disclosed during the course of the grievance arbitration.

The arbitrator rejected the employer’s argument, reasoning that the purpose of solicitor client privilege is to enable employers to seek and obtain legal advice in a confidential manner.  In this case, the Hospital’s purpose in hiring a lawyer to conduct the investigation was not to obtain legal advice, but to obtain facts in an independent and impartial manner.  In this context, simply because the independent investigator was a lawyer did not mean that his communications to the Hospital, including the investigation report, were protected by solicitor-client privilege.  The arbitrator ordered the Hospital to produce the report.

The North Bay Hospital case serves as a useful contrast to those cases where arbitrators and courts have found that investigation reports prepared by lawyers are, in fact, privileged as was the case in Gower v. Tolko Manitoba Inc.  In this decision, a lawyer was retained to investigate a claim of sexual harassment in the workplace.  The resulting report contained not only the lawyer’s investigative findings, but her legal advice regarding the employer’s potential liability.  The Manitoba Court of Appeal ultimately found that the entire report was protected by solicitor client-privilege and did not need to be disclosed.  The key distinguishing factor in the Gower case was that the employer and lawyer specifically identified that one of the purposes in retaining the lawyer to investigate the sexual harassment issue was to appropriately advise the employer of its risk of legal liability.

In the wake of the Bill 168 amendments, Ontario employers must increase their investigative savvy. While completing harassment investigations internally can certainly be cost-effective, the value of having a skilled, independent investigator complete the investigation and produce a report in a professional manner cannot be overlooked.  Lawyers are often well suited for this task.  However, as the North Bay Hospital case demonstrates, employers should not assume that investigation reports completed by a lawyer cannot be produced as part of a litigation process because they are protected by solicitor client privilege.  Careful consideration must be given to the purpose for which the lawyer is retained.  If, as in the case of North Bay Hospital, the lawyer is retained solely for the purpose of conducting an investigation, without providing legal advice on liability, the resulting report is unlikely to be protected by solicitor-client privilege.  However, as demonstrated by Gower, where lawyers are retained to investigate facts for the purpose of providing advice to employers on liability, their reports are likely to be protected by solicitor client privilege.

In all cases, the best course of action for employers would be to clearly identify the purposes for which a lawyer is being retained in the context of workplace investigation and to reflect that understanding in a detailed, written retainer agreement.  In addition, separating any legal advice provided to the employer from the factual findings in the investigation report, with the understanding that the findings may be disclosed, would also be a prudent course of action.  Finally, consideration to retaining separate counsel for the purpose of independently advising on liability and conducting an investigation may also be worthwhile depending on the workplace situation at issue.

Any one of the lawyers on the CCP team can assist you in navigating the complexities of investigating a workplace harassment or violence situation, should that need arise in your workplace.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.



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