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How do I maintain privilege over investigation reports?

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I was recently invited to speak on an Advocates’ Society panel on the subject of privilege of investigation reports.  As an investigator who conducts harassment investigations, it was a fascinating discussion because the reasons for attempting to secure privilege over investigation reports of other types were compelling.  For organizations dealing with issues such as major fraud, insider trading, or a significant regulatory breach, the prospect of litigation, and consequent legal liability, are very real.  For these reasons, great care is often taken by legal counsel representing the organization to set up the investigation so that it falls under the umbrella of solicitor/client privilege, or is done for the dominant purpose of contemplating litigation.  In both cases, these efforts are made so that there is a solid argument that the ultimate report produced from the investigation will be immune from production to any opposing party in subsequent litigation.

Increasingly, when we are retained to conduct harassment investigations, we are asked by counsel (either in-house or external) to set up our process in such a way that the report will be privileged.  When there is a desire to secure privilege in an investigation report, it is important that this be identified at the beginning because steps should be taken from the outset. For example, we ensure that (a) the retainer letter reflects the purpose of the investigation (either to assist counsel in providing legal advice, or in contemplation of litigation), (b) communications throughout the investigation, including the report itself, are all marked “privileged”, and (c) there is no inadvertent release of information relating to the investigation (including the report or any draft reports) which could later be seen to have waived privilege.

We also discuss with our clients the fact that attempts to secure privilege in an investigation report are simply that – attempts.  There is no guarantee that privilege will be secured and the investigation report will be immune from production.  First of all, no fancy language in a retainer letter, or marking “privileged” on documents, will save what is really a non-privileged report.  As was held in Slansky v. Canada (Attorney General), 2013 FCA 199, while a retainer is important evidence of what the terms of the retainer were, it is not necessarily conclusive.  In addition, the facts which exist and which may form the basis for the investigation and corresponding report are not privileged.  Regardless of what protections are secured for the investigation report, the facts (especially if they are not good facts) can come out.

Another question which often gets asked is whether an investigation report can ever be considered privileged if the investigation is done pursuant to a statute.  There are cases which make clear that privilege can still attach in these cases; in other words, at the same time that an investigation is conducted pursuant to a statute, it can still be done in contemplation of litigation and/or in connection with the provision of legal advice (see Alberta v. Suncor Energy Inc., 2016 ABQB 264, and Thomson v. Berkshire Investment Group Inc., 2007 BCSC 50). Although no cases of which we are aware have yet considered this in the context of Bill 132 under Ontario’s Occupational Health and Safety Act, it would seem that it is still possible to have a privileged report which deals with workplace harassment.

Which really begs the ultimate question about harassment investigations – do you really need/want privilege?  One difference between harassment investigations and other types of workplace investigations is that potential legal liability is often unclear at the outset, and often not an issue at all.  In many cases, even if we assume the complaint is true, the potential issue for the workplace is one which can and likely will be remediated, as opposed to leading to some step which might result in potential litigation.  In some cases, policies dictate that harassment investigation reports must be provided to the parties, in which case privilege is never a consideration.  In the absence of such policy language, there is still often a discussion of whether providing a copy of the report to the parties will offer a transparent look at the process, and hopefully avoid litigation.  In other cases, even when securing legitimate privilege over a report may be a longshot, organizations may assert the right regardless, as a means of trying to protect the evidence contained in the report and, specifically, the witnesses who provided that evidence.

As harassment complaints appear to be on the rise, as are the number of workplace investigations, it is worth giving thought at the beginning of your process as to whether securing privilege in your investigation report is something you might wish to do.  If so, steps need to be taken early, and they are best taken with the assistance of your legal counsel.

Christine Thomlinson

About the Author: Toronto Employment Lawyer Christine Thomlinson is a co-founder and co-managing partner of Rubin Thomlinson LLP. Appearing regularly on Best Lawyers and Leading Practioners lists in Canada, Christine is known for her high capability to think strategically, and her ability to find practical, often innovative, legal solutions to her clients’ challenging workplace issues.