Employers have attempted to assert privilege over investigation reports, with mixed degrees of success. The Ontario Superior Court of Justice’s recent decision involving a party’s right to production of all investigation documentation in Howard v. London (City) 2015 ONSC illustrates an unsuccessful attempt at asserting privilege over an investigation report, and provides a useful and in- depth discussion of when privilege may apply.
Cindy Howard was the Director of Social and Community Support Services for the City of London (the “City”). The City terminated Ms. Howard from her position for cause after it retained John McNair, an external investigator and lawyer, to undertake an internal investigation into the death of a resident of a City-owned nursing home where Ms. Howard was assigned duties. The City acknowledged that it terminated Ms. Howard’s employment as a result of Mr. McNair’s findings in the investigation.
In Ms. Howard’s action for wrongful dismissal, she brought a motion for the production of all documentation related to the investigation, including the investigation report over which the City claimed privilege.
The Court confirmed that, if the investigator is a lawyer, investigation documents might be privileged. Privilege is an
“Even when asked to provide advice, unless that advice is legal advice, no privilege protects the investigation.”
exception to the rule of evidence that requires the production of relevant documents by parties to a legal proceeding. The two main types of privilege that are applicable in the context of a third-party investigation (and which sometimes overlap) are 1) solicitor-client privilege, which applies to all direct confidential communications between a lawyer and a client related to the seeking, forming, or giving of legal advice; and 2) litigation privilege, which applies to materials produced for the dominant purpose of contemplating litigation.
In this case, the Court found that solicitor-client privilege and litigation privilege did not protect the investigation report from production. The stated issues which Mr. McNair was retained to explore made little mention of legal advice being sought with respect to legal issues, and there was no evidence that litigation of any kind was contemplated against Ms. Howard at the time Mr. McNair conducted the investigation. Mr. McNair’s primary function was one of an independent third-party retained to investigate “HR matters”, and Ms. Howard did not understand nor expect that the investigation would lead to the establishment of individual blame.
The Court ordered the City to produce all documentation related to the investigation, including the investigation report, subject to the condition that personal information as defined under privacy legislation be redacted.
What does this mean for employers who want to assert privilege over third-party investigations?
- Remember that privilege may apply to an investigation report created by a lawyer for the purpose of giving legal advice, but unlikely applies to other aspects of an investigation, such as notes taken in meetings with a lawyer present, previous existing documents given to the investigator, witness testimony, and the facts, physical evidence and records underlying the investigation.
- The nature of the relationship between the lawyer/ investigator and the client should be clearly defined in the authorizing retainer agreement, which should include the specific purpose of the investigation; namely, that the investigator is hired as a lawyer for the purposes of obtaining facts to be used in the provision of legal advice or services. Broad privilege claims which blanket many documents, some of which are described vaguely, and which cover work that can be done by a non-lawyer, will often fail.
- If the employer has internal legal counsel, consider having the internal counsel retain the investigator, and have the report issued exclusively to the employer’s internal counsel. Privilege can be waived without an express intention to do so, such as when documents are disclosed to third parties who are not part of the privileged relationship.
- Prepare all written communications (including all emails sent) in the investigation with care, as these may well be ordered to be produced.
- Consider whether asserting privilege over a report is ultimately in the employer’s interests. If the employer is satisfied that the report clearly supports the position being taken, disclosure may actually be helpful.
- To be safe, always assume that the investigation report, and all communications related to the investigation process, will have to be produced. With that in mind, the investigation-related communications should show that the organization did not interfere with the investigation process or final determination by the investigator. The report should show that the investigator engaged in a thorough and fair process, as well as demonstrate the factual basis for the investigator’s conclusions.