One of the benefits of hiring external legal counsel to investigate a workplace complaint is, when done properly, it may protect the investigation and resulting report from disclosure to third parties through legal privilege.
Two forms of privilege generally apply to a workplace investigation: solicitor-client privilege and litigation privilege.
Solicitor-client privilege aims to protect the relationship between a solicitor and their client. The Supreme Court of Canada has confirmed that this privilege is nearly absolute and that exceptions will be rare. However, it only applies to confidential communications between a client and their solicitor for the purpose of giving or receiving legal advice.
Litigation privilege aims to facilitate the investigation and preparation of a case for trial through the adversarial process. Therefore, it can apply even to communications of a non-confidential nature between the solicitor and third parties. However, for litigation privilege to apply, the dominant purpose for creating the document(s) must be the contemplation of actual or anticipated litigation.
To claim legal privilege over a workplace investigation, legal counsel must be retained to provide legal advice concerning the investigation. It is not enough that legal counsel is retained to investigate and report on facts. Accordingly, retainer letters with legal counsel should carefully define the role and function of the legal counsel and indicate that legal advice, in particular, is being sought with respect to the legal consequences arising from the investigation.
Further, confidentiality is essential to preserving privilege. Simply labelling the final report as “privileged and confidential” is not determinative of legal privilege protection, and privilege can be easily lost if not managed properly. Therefore, employers should develop a plan for internal communications and records relating to the investigation, determining: who has the authority to give instructions and receive advice from legal counsel; who needs to receive privileged reports or documents, for what purpose and in what format; and not sharing privilege reports and documents with external parties.
If an employer is seeking legal privilege over a workplace investigation and retains legal counsel to do so, it should be clear in the retainer letter that legal counsel is being retained as a legal advisor and not an investigator. Requests for advice arising from the investigation should be legal in nature (e.g., does the misconduct amount to just cause?) and not simply a conclusion on whether violations of internal policies occurred. In addition, if litigation is contemplated, it should be clearly documented. Employers should also develop a plan to protect the confidentiality of the resulting investigation report and associated documents.
If you have any questions about conducting a workplace investigation or workplace investigation training resources, or any other employment and labour questions, please reach out to Alison Walsh and Jenny Wang.