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 anticipated-litigation privilege.
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 relations.”
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.
Durham Regional Police Association v Durham Regional Police Services Board, 2015 CanLII 60920 (ON LA)