Canadian Lawyer InHouse

9 CANADIANLAWYERMAG.COM/INHOUSE JANUARY 2016 By Ashley Lattal Workplace Solutions W hen does privilege apply to work- place investigations conducted by external lawyers? This issue was considered in a re- cent arbitration decision, Durham Re- gional Police Association v. Durham Regional Police Services Board. Durham is not new law, but it provides additional context for understanding when privilege applies to workplace investigations, an issue that many find unclear. Durham determined that a report prepared by an ex - ternal lawyer-investigator was not subject to solicitor/ client or litigation privilege. The board retained the investigator to investigate harassment complaints and determine if any policy breach had occurred. Based on the facts, the arbitrator found that the purpose of the investigation was to determine whether the complaints were substantiated as a result of the employer's obliga - tion to provide a harassment-free workplace, and not to provide legal advice. While the determination of the issue is fact-specific, set out below are some takeaways from leading cases to provide guidance for those retaining external lawyer investigators. 1. Privilege attaches to investigation documents where the evidence establishes that the investigation was conducted for the purpose of providing legal advice (at least in part) or in contemplation of litigation. 2. The purpose of the investigation will be determined by examining the particular facts, including retainer language and conduct of the investigation. A retainer that states that the investigator is to con - duct an investigation as counsel for the purpose of giv- ing legal advice based on factual findings (or is being undertaken in contemplation of litigation) favours an assertion of privilege (see, e.g., Gower v. Tolko Manitoba Inc.). The opposite holds true for a retainer that instead refers to the investigation as "independent" with no mention of legal advice or privilege (see, e.g., Durham and Howard v. London (City)). The cases have also examined the investigation pro - cess itself to determine the purpose of the investigation. Factors that have been found to weigh against an asser- tion of privilege include: involving union in selecting investigator and determining interim measures; failing to advise union that the report would be privileged; de- fending actions based on investigation being "indepen- dent"; litigation being a "mere possibility" at time of in- vestigation; absence of privilege claim over similar past investigations. Factors that have been found to weigh in favour of privilege include: marking report "privi- leged" and/or utilizing headings such as "legal analysis" and "legal advice"; advising interviewees that investiga- tor was acting as employer's legal counsel; existence of company policy providing report is privileged and/or will go to company counsel; and investigation requiring extensive knowledge of law or legal process. 3. Employers should consider the mandate at the outset of the investigation and ensure the process is consistent with that mandate. It may be tempting to attempt to create the best of both worlds by setting out a privileged relationship via the retainer while holding the investigator out to employees as independent. However, the Durham case suggests that it is inconsistent to act as both an inde - pendent investigator and legal adviser to the employer. 4. Retaining a lawyer to find facts and advise on whether a policy has been breached is not sufficient for privilege to attach. The investigator's mandate in Durham to advise whether an internal policy had been violated without any discussion about liability or litigation strategy was determined not to constitute "legal advice." However, Durham also found that providing recommendations as to how the board should respond to her findings following the report rendered such communications privileged. This raises the question of whether includ - ing those recommendations in the report would have rendered the entire report privileged. 5. Retain an investigator through legal counsel. Employers may consider retaining the investigator through counsel to strengthen the argument that privilege applies to the investigation. However, this will not guarantee privilege if other facts indicate that the true purpose was not to provide legal advice (see, e.g., Howard). 6. Assume investigation documents will be producible and ensure communications evidence a fair and thor - ough process. Where there is possible ambiguity as to the purpose of an investigation, the best practice is to assume that all investigation-related communications may be pro - ducible and ensure that they will be viewed as contrib- uting to a fair, unbiased, and thorough investigation. IH Privilege and the workplace investigation Recent cases lend some insight into murky issue. Ashley Lattal is partner with Shearer Lattal LLP, a Toronto law firm specializing in workplace investigations, mediation, and training.

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