The mere fact that a lawyer prepared an investigation report
does not make it privileged, a labour arbitrator has held, granting
the union's request for a subpoena to obtain the report.
The Durham Regional Police Association (the police union) filed
a grievance alleging that the Association's civilian members
had suffered harassment. The Durham Regional Police Services Board
(the employer) retained a lawyer to conduct a harassment
investigation and prepare a report, which she did. The
Association requested a copy and the Board refused, claiming that
the investigation report was protected by both solicitor-client
privilege and anticipated-litigation privilege.
The arbitrator decided that the lawyer-investigator was retained
to conduct an investigation into whether harassment occurred. She
was not retained to conduct an investigation on the Board's
behalf and to assess its liability and provide legal advice.
The arbitrator noted that the lawyer-investigator was not the
Board's usual labour lawyer. The
lawyer-investigator's retainer letter was also not a retainer
for the provision of legal advice. Importantly, the
investigation was meant to be independent. Effectively, she
was acting as an independent investigator, not the Board's
labour lawyer. As such, the investigation report was not
covered by solicitor-client privilege.
With respect to anticipated-litigation privilege, the arbitrator
stated that the dominant purpose for which the investigation report
was prepared was not litigation. Instead, the purpose of the
report was to determine whether the harassment complaints were
substantiated because the Board was committed to a harassment-free
workplace. Litigation was a mere possibility when the
investigation was conducted and was not its dominant purpose.
As such, the investigation report was not protected by
The arbitrator concluded:
"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
This case is a reminder that employers and their counsel should
carefully consider, up-front, whether they wish the
investigator's report to be independent or to be subject to
privilege. If privilege is sought, the investigator's retainer
letter should clearly state that privilege is asserted, and whether
both solicitor-client and anticipated-litigation privilege are
claimed. The Ontario Court of Appeal's 2009 decision in
R. v. Bruce Power Inc., 2009 ONCA 573 (CanLII)
provides a good example of how privilege can be successfully
asserted over a workplace investigation report.
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).