An Ontario labour arbitrator has decided that a hospital’s lawyer’s investigation report into a bullying/harassment complaint was not privileged, so that the union was entitled to a copy.
The North Bay General Hospital had retained a lawyer to investigate a complaint that an employee had bullied and harassed other staff. The lawyer-investigator concluded that the employee had indeed engaged in bullying and harassment. The hospital disciplined the employee, and the union grieved the discipline. The union asked the labour arbitrator to order the hospital to turn over a copy of the lawyer-investigator’s report. The employer argued that the report was lawyer-client (also called “solicitor and client”) privileged and thus the union was not entitled to it.
The arbitrator decided that the investigation report was not privileged. She noted that the investigation report stated that the lawyer was retained “as an independent investigator” to “investigate the concerns” of bullying and harassment – not as a lawyer to give legal advice. Thus the hospital was required to give a copy of the report to the union. The arbitrator stated:
“I see no reason to distinguish between [lawyer and non-lawyer investigators] if the purpose for which they were retained is the same, of investigating events to make findings of fact. I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer. There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor. Accordingly, I find Mr. Robinson’s communications with the Hospital in respect of his role as investigator of these allegations is not protected by solicitor and client privilege.”
This decision is a reminder to employers that if they wish to claim lawyer-client privilege over a lawyer’s investigation report into a workplace issue (such as a violence or harassment issue under Bill 168, or another safety issue), then the purpose of the lawyer’s involvement should be to provide legal advice, not solely to investigate. Lawyer-investigators should consider sending the employer a retainer letter stating that the purpose of the lawyer’s involvement is to provide legal advice, and the purpose of the investigation is to gather facts in order for the lawyer to provide that legal advice. The lawyer should follow up the investigation with a written legal opinion flowing from the results of the investigation; that way, the investigation report is much more likely to be privileged.
North Bay General Hospital v Ontario Nurses’ Association, 2011 CanLII 68580 (ON LA): http://www.canlii.org/en/on/onla/doc/2011/2011canlii68580/2011canlii68580.html