Summary
A recent decision of the British Columbia Supreme Court (the "Court"), Starrs v. Troczynski, 2024 BCSC 2267 ("Troczynski"), serves as a useful reminder to employers about when workplace investigation reports may be privileged or disclosable in civil proceedings.
In Troczynski, the employer sought to prevent the disclosure of a workplace investigation report (the "Report"). Although the employer was unsuccessful in its argument that the Report was subject to solicitor-client privilege, the Court ultimately ordered the Report to be withheld from disclosure to protect the privacy interests of the witnesses who were interviewed. In the Court's view, the witnesses' privacy interests outweighed the probative value of the Report.
Background
In Troczynski, the plaintiff sought disclosure of the Report for the purposes of prosecuting an action against his former solicitor whom he alleged missed a limitation period in filing the plaintiff's wrongful dismissal claim against his former employer.
The plaintiff, Anthony Starr, was employed by Heidelberg Materials Canada Limited ("HMC") from 2004 to 2020. In 2020, HMC's in-house counsel engaged the services of Integrated Risk Investigations Security Solutions Corp. ("IRISS") to conduct a workplace investigation for the purposes of investigating Mr. Starr's conduct. IRISS conducted the workplace investigation and shared its findings with HMC's in-house counsel via the Report.
In September 2020, HMC made the decision to terminate Mr. Starr's employment for just cause, at least in part based on the findings contained in the Report. Mr. Starr alleged that in May 2022, he hired the defendant solicitors to pursue a claim against HMC for wrongful dismissal, and that they missed the limitation date, thus frustrating his ability to pursue his claim. As a result, Mr. Starr brought an action against his former solicitors. In an application under rule 7-1 of the BC Supreme Court Civil Rules (the "Rules"), Mr. Starr sought production of his HMC employment file and the Report. Production of Mr. Starr's employment file was largely uncontroversial; however, his former employer refused to disclose the Report and Mr. Starr sought to compel its disclosure.
Analysis of the Decision
HMC first argued that the Report was not disclosable to Mr. Starr as it was subject to solicitor-client privilege. Claims for solicitor-client privilege are usually framed in terms of communications directly between a client and a solicitor. It is, however, well-settled that solicitor-client privilege can extend to communications between a solicitor or a client and a third party.
Given that a third party was involved, the central question the Court considered was whether IRISS, a third party, prepared the Report for the purpose of HMC seeking or providing legal advice, opinion, or analysis.
Solicitor-client privilege only applies if the third party is engaged as an agent of the client to obtain the legal advice of the solicitor. In these cases, the third party simply transfers information from the client to the lawyer or from the lawyer to the client.
However, when a third party is tasked with gathering information from outside sources and passing that information to a lawyer so that the lawyer can advise his or her client, the third party's function "is not essential to the maintenance or operation of the solicitor-client relationship and should not be protected". In this case, the third party, IRISS, provided information to in-house counsel for the purposes of in-house counsel giving legal advice to HMC. For this reason, the Report was not privileged because IRISS only collected information to pass onto HMC's lawyer.
Even though it concluded that the Report was disclosable, the Court retained the discretion under Rule 7-1(18) to decide against disclosure. In this case, the Court ultimately declined to order production of the Report because it concluded that the privacy interests of the witnesses interviewed in IRISS's investigation outweighed the probative value of the Report to Mr. Starr's action against his former solicitors.
The Court's decision was based on its findings that:
- The contents of the Report were unlikely to assist Mr. Starr in establishing that the defendants did not meet the standard of care required of a solicitor;
- The witnesses would not have provided information to IRISS but for the assurance of confidentiality;
- The witnesses are workers in a remote First Nations community, so their identities were reasonably clear from the surrounding circumstances (even if their names were redacted); and
- The witnesses were like whistleblowers in this case, as they were at risk of significant reprisal for their involvement in the IRISS investigation that led to the termination of Mr. Starr's employment with HMC.
Key Takeaways
The Troczynski decision provides instructive guidelines on the application of privilege and privacy over the findings of a workplace investigation. In HMC's case, although the Report was commissioned by, and communicated to, in-house counsel, the Report itself was not privileged. Accordingly, employers that wish to maintain privilege over a workplace investigation report should consider retaining external counsel as investigators directly.1 Employers should also be mindful of any assurances of privacy and confidentiality promised to witnesses in a workplace investigation.
Finally, although the Court decided the Report was not disclosable, this case does not stand for the proposition that a workplace investigation report will typically not be disclosable due to the privacy interests of the witnesses. In this case, a key aspect of the Court's decision was the fact that the Court did not consider the Report to be material to the issues in the litigation, namely whether Mr. Starr had a claim against his former solicitors for not filing his claim within the limitation period. Also, the HMC employee witnesses were particularly vulnerable to retaliation due to their personal circumstances. As such, if employers are concerned about witness privacy, the better approach to take is to ensure that the workplace investigation is subject to solicitor-client privilege.
Footnote
1 See more on the issue of maintaining privilege over a workplace investigation report in this blog post.
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