Privilege in workplace Investigations

As the trend towards increased workplace investigations and retaining third party investigators continues, so does the need to consider issues of privilege and what is protected in the investigative process. The recent Alberta decision of Prosser v. Industrial Alliance Insurance, 2024 ABKB 87, shed light on this topic, examining how the purpose and use of an investigation can impact where the privilege line is drawn.

In Prosser, the court ordered the disclosure of documents collected by a human resources consultant during a workplace investigation. The consultant was retained by the employer to investigate allegations of harassment by an employee. The plaintiff employee was terminated for cause following the investigation.

The employee sought the disclosure of various documents collected and created in the investigation including the transcripts and recordings of interviews, but not the investigation report itself, which communicated the findings to the employer and its counsel. The employer took the position that these documents were protected from disclosure by both litigation privilege and solicitor-client privilege, as they argued that the investigation had been undertaken in anticipation of litigation and for the purpose of obtaining legal advice.

Reliance on report for termination waived privilege

The court ultimately found that the third-party investigation was conducted for the purpose of obtaining information related to non-privileged operational objectives, and it was therefore not privileged. The court held that the investigation was not undertaken for the dominant purpose of preparing for litigation, but rather it was initiated to fulfill the employer’s obligations as set out in their Respectful Workplace Policy. The policy itself specifically stipulated that the investigation may be disclosed if required by law. This was distinguished from the investigation report, which the judge commented was created for the purpose of obtaining legal advice, and as such would likely be protected by privilege.

The court found that the employer had further waived any privilege claim by relying on the investigation findings in its defense. The court reasoned that as the employer had relied on particular sections of the investigation to justify the termination, it was required to disclose the investigation materials.

Prosser demonstrates that privilege over investigations is not automatic; it must be established based on the circumstances of the investigation. It is also important to note that while retaining a lawyer may be assistive in the process, it does not guarantee privilege, as solicitor-client privilege is a factual determination. Generally, if a lawyer is retained for the purpose of making factual findings and providing legal advice based on those findings, the investigation will be privileged. This is in contrast to situations where a lawyer is retained solely to conduct a factual investigation, which will not be privileged.

Purpose of investigation

Privilege may not apply if the investigation serves both operational (non-legal) and legal purposes. In Prosser, the investigation served both an operational objective and also ensured compliance with company policy, which affected the determination of privilege. It is also important to note that where a party relies on the findings of an investigation in its defense, it may be deemed to have waived privilege over the investigation materials.

If maintaining privilege over an investigation is a concern, consult with your lawyer about how best to ensure the process is protected. Ultimately, it is crucial to establish the purpose of an investigation from the outset, including whether its primary aim is for legal advice or to prepare for litigation. This clarity can help in determining whether privilege applies.

Lindy Herrington is an employment lawyer and workplace investigator at Turnpenney Milne in Toronto.