Is an investigation report covered by privilege?

The issue of confidentiality as it relates to investigation reports is evolving. Ultimately, the manner in which the retainer agreement or terms of reference have been drafted will impact the manner in which a decision-maker will view the privilege attaching to the report. 

In Jamal v Aisling Discoveries Child & Family Centre, 2018 HRTO 777, the Complainant sought production of the investigation report and the external investigator’s notes regarding the past harassment complaints. The employer, however, claimed that the report was protected by litigation privilege. In this matter, the HRTO held that the report had to be disclosed because it was created for the furtherance of the employer’s internal harassment policy and not for the purpose of litigation.

The Tribunal in Jamal relied on the jurisprudence regarding issues of litigation privilege (Lastella v. Oakville Hydro Corporation, 2009 HRTO 1806) and determined the dominant purpose test applied. The Tribunal stated, “the court […] adopted the dominant purpose test. That is for the [litigation] privilege to apply, the dominant purpose, not one of the purposes or a substantial purpose, for the creation of the document in question had to be the contemplation of actual or anticipated litigation.” As such, the Tribunal concluded that the report and notes were arguably relevant to the Tribunal hearing and ordered production.  

Prior to this case, a similar issue was addressed in an Arbitration matter, Durham Regional Police Association v Durham Regional Police Services Board. In this matter, the Arbitrator ruled that the investigation report was not covered by solicitor-client or litigation privilege as a matter of right on account of it being prepared by a lawyer.

The employer argued that the investigator was hired to conduct the investigation but also provide legal advice (i.e., the investigator had to reach legal conclusions that were “inextricably linked” to the findings of fact). In the alternative, the employer argued that the report was covered by litigation privilege because there was a strong likelihood that the events would lead to litigation (which they did).

The Union argued that the report should be produced because the terms of reference appointed the investigator as an information gatherer rather than legal counsel. It was argued that the involvement of the lawyer as investigator did not convert the outcome to legal advice. Further, the fact that the Union was present during many of the interviews defeated the claim of solicitor-client privilege. Finally, the Union argued that the report was not prepared with the primary purpose of preparing for litigation and as such, the privilege did not apply. The Arbitrator held that the report would be produced and provided to the Union because the predominant purpose of the report was not related to litigation nor the provision of legal advice. The Arbitrator noted that advising on policy violations was not necessarily legal advice. Further, if a lawyer is retained to conduct an investigation where legal advice is contemplated it would be clearly identified in the retainer or mandate of the investigation.

Had the terms of reference or retainer agreement explicitly preserved privilege a different outcome may have ensued in both these matters. Moreover, these cases highlight the importance of considering these issues prior to engaging an investigator and drafting the terms of reference carefully if the purpose is to preserve the right of privilege.