In a recent decision, an Alberta court ordered the disclosure of the records and information gathered by a human resources consultant retained by the employer to investigate alleged harassment by an employee. The disclosure was ordered in the context of a wrongful dismissal claim brought by the employee, who had been terminated for just cause following the investigation.
The decision in Prosser v. Industrial Alliance Insurance, 2024 ABKB 87 serves as auseful reminder that privilege is not automatic but must be consciously asserted and protected. In many cases, the employer may want or need to rely on the investigation materials to support its decision-making (for example, terminating for cause) or to confirm its compliance with regulatory requirements, so disclosure obligations and audiences should be front of mind from the start.
The facts
The employee wanted an order to disclose all information and records gathered by the investigator during the investigation, including the transcript and recordings of witness and party interviews, as well as information about a second complainant.
The employee did not seek disclosure of the investigation report which communicated the results of the investigation to the employer and its counsel, so whether the report itself was privileged was not an issue before the court.
The employer took the position that the records were litigation and solicitor-client privileged.
The decision
After reviewing Canadian case law exploring the issue of privilege in the context of workplace investigations, the judge found that the third-party investigation was not privileged, but had been conducted for the purpose of ascertaining information to conduct non-privileged corporate operations. The judge emphasized the operational purposes of the investigation under the employer's respectful workplace policy, drawing a distinction between a privileged investigation and a policy investigation.
In assessing the policy, the judge commented that the policy "should not be lightly assumed to be an unimportant operational process." The Respectful Workplace Policy in question did not contemplate privilege over the investigation, but instead specifically confirmed that the investigation may be disclosable where required by law. If the outcome of the policy investigation was termination or discipline, the responding party would "reasonably expect to have access to the case against them in the event they wished to challenge the decision."
The purpose of the investigation itself was not to obtain legal advice or for the dominant purpose of preparing for litigation, it was to discharge the employer's own human resource undertakings as committed to in the policy. As an aside, the judge did comment that the investigation report (not at issue) was most likely privileged, as it had been created for the purpose of obtaining legal advice.
The judge cautioned that the "spectre of compelled disclosure" should not impede corporate clients from obtaining legal advice, noting that regardless of whether the company had sought legal advice or not, it would have conducted an investigation in compliance with its own operational requirements. As a result, it "cannot reasonably expect the almost absolute assurance of confidentiality that comes with solicitor-client privilege."
The judge went on to find that, even if the records were privileged, that privilege had been waived due to specific reliance on the information at issue in the employer's filed pleading responding to the claim. The response went beyond a mere denial of the allegations and explicitly relied on the sufficiency of the evidence obtained in the investigation and the findings in the investigation, which the plaintiff could only challenge if they had access to the investigation records.
Key takeaways
- There is no absolute guarantee of privilege or confidentiality, investigations should be conducted with potential disclosure obligations and demands in mind.
- The purpose(s) of an investigation must be determined at the outset, together with issues of whether privilege will apply and how it should be asserted and protected throughout the investigation.
- Retaining a lawyer as an investigator does not automatically
cloak the investigation with privilege whether legal advice
privilege will apply is a factual determination:
- If a lawyer is retained solely for the purpose of conducting a factual investigation, the investigation will generally not be privileged.
- If a lawyer is retained for the purpose of making factual findings and providing legal advice based on those findings, the investigation will generally be privileged.
- An investigation may be privileged if the dominant purpose of the investigation is to determine facts for the express purpose of getting legal advice or to prepare for litigation, regardless of whether the investigator is a lawyer or not.
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