Speaker's Corner: Case offers guidance on privilege in workplace investigations

Superior Court Master Donald Short’s recent decision in Howard v. London (City) has turned the spotlight on the importance of workplace investigations and the law with respect to privilege relating to the investigator’s report.

The issue before Short arose in the context of a wrongful dismissal action. The plaintiff had been working for the city as director of social community support services in addition to taking on responsibilities for a city-owned nursing facility, Dearness Home.

An elderly resident who had left the residence died while attempting to cross a street.

The city retained a London lawyer, John McNair, to conduct an investigation into the circumstances of the death. Following the completion of his report, the city terminated the plaintiff, Cindy Howard, for just cause in relation to the incident.

The plaintiff moved successfully for the production of the McNair report. The first issue before Short was whether the report was subject to privilege as legal advice.

Short conducted a factual review of the context of the retainer to determine the mandate of the investigator. He found there was no privilege for legal advice, noting the retainer bore no reference to the possible termination of any employee, let alone the plaintiff specifically.

It is evident that the very fact that the report came from legal counsel does not end the analysis.

To claim privilege for legal advice, the factual context must support the assertion that the intention was to and did in fact provide a legal opinion on the relevant issue.

More significantly, however, the same decision dealt with an important concept, common interest, that will have significant implications for the future conduct of workplace investigations.

Short noted that during repeated interviews with the plaintiff, she had received assurances she was not in a position of personal vulnerability. Howard also asked if she should retain legal counsel and was not only denied the right to have counsel represent her but was told such an action was not necessary.

It was clear on the evidence that there was no expectation on the part of the plaintiff that her position was in jeopardy.

In this instance, the court found there was a common interest between the plaintiff and the employer and, hence, would have ordered production of the report even if it had accepted the privilege claim. As part of the decision, Short referenced a 1982 ruling in R. v. Dunbar in which the court stated: “The authorities are clear that where two or more persons, each having an interest in some matter, jointly consult a solicitor, their confidential communications with the solicitor, although known to each other, are privileged against the outside world. However, as between themselves, each party is expected to share in and be privy to all communications passing between each of them and their solicitor. Consequently, should any controversy or dispute arise between them, the privilege is inapplicable, and either party may demand disclosure of the communication. . . .”

As short noted in Howard: “In my view that is exactly the situation here and no privilege can be asserted against the plaintiff who was intimately involved in the conducting of the subject investigation.”

Thus, in circumstances where the employee has received assurance that she has no vulnerability and assists in and is “intimately involved” in the investigation, the party sharing the common interest cannot assert privilege against her.

There are other issues as well.

The court determined the employer was, in any event, also estopped from asserting privilege against her.

“No contrary evidence was filed to challenge her sworn testimony to the effect that was repeatedly assured that she had nothing to be concerned about and was told by Mr. McNair not only that she did not need a lawyer but that she could not have one in attendance,” wrote Short.

“In such circumstances it would seem to me that the City is estopped from asserting a privilege interest in the Investigation against the plaintiff.”

Although the use of the admission in the merits of the case remains a live issue, it should logically follow that estoppel should prevent the substantive use of the contents against the person in the action.

The decision brings into focus, and rightly so, the relationship between the investigator and the person under questioning. It does seem inherently unfair to allow the investigator to be friendly with the person subject to the interview and then use the contents of the session to hammer home a position against her.

The investigator, particularly appearing as a neutral third party, must take care in discussing the likely culpability of the person subject to questioning.

Gillian Shearer, a partner at Shearer Lattal LLP and the author of a soon-to-be-released text on workplace investigations, offered this view of the decision: “Master Short was clearly influenced by the unfairness of this case. While this case may not signal a dramatic shift in the law respecting privilege, it nonetheless serves as a strong reminder that when faced with a workplace investigation, it is essential to slow down and to mindfully consider its scope and purpose, as well as the intended use of the resulting report. It also rings the familiar bell that the investigator must always conduct investigations and write reports based on the presumption that there will be no privilege attached.”

Barry Fisher, a Toronto employment law mediator, said: “This case may strengthen the position of a person being either investigated or interviewed in a workplace matter to insist on the right to have their own lawyer present during questioning. At present, many companies do not allow the presence of employee counsel in an investigation, a position which is highly in dispute.”  

David Harris, a former lawyer, is publisher of Employment Law Books (e-mploymentbooks.com) as well as author of Wrongful Dismissal, published by Carswell.

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