Skip to content

Brought to you by

Dentons logo

Canadian Occupational Health & Safety Law

Keeping you current on OHS Laws and Developments in Canada.

open menu close menu

Canadian Occupational Health & Safety Law

  • Home
  • About Us

“Communications and conduct” of employer’s lawyer regarding sexual harassment investigation were not privileged, could be referred to in Claim, court decides

By Adrian Miedema
August 29, 2018
  • Caselaw Developments
  • Violence and Harassment
Share on Facebook Share on Twitter Share via email Share on LinkedIn

Over the objections of a company’s employment lawyer, an Ontario court has permitted an employee to refer, in her Statement of Claim for constructive dismissal and bad faith, to the “communications and conduct” of the company’s lawyer in respect of a sexual harassment investigation.

The employee made sexual harassment and bullying allegations against a coworker. The employer investigated and concluded, without speaking with the employee, that the allegations were not substantiated.  During this period, the employee was placed on a Performance Improvement Plan.

The employee eventually retained counsel who requested a severance package.  The employer then also retained counsel.  For a few months, the lawyers communicated by phone and correspondence.  They discussed the investigation.   The employee’s counsel urged the company to conduct a new or more thorough investigation, which the employer did.  The employee then started her constructive dismissal lawsuit and included, in some paragraphs of her Statement of Claim, reference to some of counsel’s discussions and conduct.

The company moved to strike those paragraphs from the Statement of Claim on the basis that the discussions between counsel were “without prejudice” settlement discussions. The Master refused to strike the paragraphs.  She held that the discussions and conduct of the company’s lawyer with respect to the harassment investigation did not relate to a “litigious dispute” but rather to the company’s statutory obligation under the Occupational Health and Safety Act to investigate the sexual harassment allegations.  The sexual harassment investigation report itself was not privileged. Counsel’s conduct during the sexual harassment investigation was “highly relevant and both counsel must have understood its relevance should litigation ensue”.  Finally, although the outcome of negotiations between counsel may have led to a severance settlement, and the employer’s lawyer told the employee’s lawyer that she wished to engage in without prejudice settlement discussions prior to sharing any information with him, the communications in relation to the investigation and the PIP were directly relevant to the employee’s claim for constructive dismissal and bad faith.  

In the result, the communications between counsel regarding the sexual harassment investigation and the PIP were not “settlement privileged” and were not struck from the employee’s Statement of Claim.

Clayton v. SPS Commerce Canada Ltd., 2018 ONSC 5017 (CanLII)

Share on Facebook Share on Twitter Share via email Share on LinkedIn
Subscribe and stay updated
Receive our latest blog posts by email.
Stay in Touch
Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

All posts Full bio

RELATED POSTS

  • Amendments to Safety Laws
  • Violence and Harassment

Gas Station Employees’ Safety and Wages Would be Protected under Ontario Private Member’s Bill

An Ontario Private Member’s Bill, introduced on September 20, 2012, seeks to protect gas station attendant’s safety and their income. […]

By Adrian Miedema
  • Caselaw Developments
  • Violence and Harassment

Illegal for Harassment Program to Allow for “Preliminary Assessment”, Early Dismissal, Employee Arguing at OLRB

A provision in a harassment program allowing for a preliminary assessment of complaints, rather than an investigation,  and for early […]

By Adrian Miedema
  • Caselaw Developments
  • Safety Professionals - Practice Issues

Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

An employer’s appeal challenging a departed employee’s workers’ compensation entitlements may proceed, despite being filed after the employer, union and […]

By Adrian Miedema

About Dentons

Dentons is the world’s largest law firm, delivering quality and value to clients around the globe. Dentons is a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral Network. Dentons’ polycentric approach and world-class talent challenge the status quo to advance client interests in the communities in which we live and work. www.dentons.com.

Digital Dentons

Twitter

Categories

  • Amendments to Safety Laws
  • Caselaw Developments
  • COVID-19
  • General
  • Government Safety Investigations
  • International Standards
  • Other Safety Developments
  • Prosecutions / Charges
  • Safety – Risk Management
  • Safety Professionals – Practice Issues
  • Violence and Harassment

Subscribe and stay updated

Receive our latest blog posts by email.

Stay in Touch

Dentons logo

© 2021 Dentons

  • Legal notices
  • Privacy policy
  • Terms of use
  • Cookies on this site