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Can an Employer be Forced to Give up Copies of Internal Investigation Reports?

17-May-12

by Hugh McPhail, Q.C.

A decision a few months ago from Ontario relating to employer investigations has attracted some attention and reminds us of an important issue for employers. Major incidents require thorough and prompt investigations. It can be a significant strategic disadvantage to let employee counsel or union counsel have everything in those investigation files. For example, witness statements are often shabbily written and incomplete, providing fodder for cross-examination. So how do you conduct investigations to ensure that there is privilege attached to the results of the investigation? More importantly, what is the best way to facilitate full, frank and extensive interviews?

In the Ontario case, an employer hired a lawyer to investigate misconduct of an employee. He was hired as an independent investigator and was charged with investigating what happened. The union sought a copy of his report. The employer’s claim of privilege failed. The fact that the investigator was a lawyer did not shield the report from disclosure. That result is not surprising. Though it is helpful to have a lawyer conduct workplace investigations, that alone does not mean there is privilege.

If the investigation notes and statements are not privileged, then what about recommendations to an employer about what to do? This was also recently answered in an Alberta arbitration decision. An internal investigator looked into serious allegations against an employee. The report led to the decision to terminate the employee. The employer was willing to produce the statements, diagrams, notes, and tape recordings of interviews, but not the formal investigation report prepared by Human Resources, which provided advice about what to do. The arbitrator ruled that this formal report was subject to litigation privilege.

If you cannot live with that limited scope of privilege, and sometimes you wouldn’t want to, then you should follow the lead of another case decided several years ago by the Alberta Court of Appeal. The Court affirmed that privilege attached to all investigation notes and witness statements in the following circumstances: The employer investigated employee misconduct through an arrangement where the investigation notes and witness statements were generated and provided exclusively for the purpose of gaining advice from a lawyer about what to do; no one else saw the notes and statements; and the privilege applied even though the lawyer involved in the process was an in-house lawyer. It is important that the investigation relate to the provision of legal advice.

If you want privilege to attach to an investigation, and you often should, then you need to proceed with caution.

 

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