An Ontario labour arbitrator recently held that a lawyer’s investigation report into allegations of bullying and harassment was not subject to solicitor-client privilege and ordered the report to be disclosed to the union. In North Bay General Hospital v. Ontario Nurses’ Association (October 2011) the Hospital retained a lawyer to investigate complaints against the grievor of harassment and bullying. Following the conclusion of the investigation, the lawyer provided a report of his findings to the Hospital. The report concluded that the grievor had in fact engaged in the alleged misconduct. On the basis of the report, the hospital disciplined the grievor by issuing a written warning and demoting the grievor from her role as Charge Nurse.
The Union grieved the discipline alleging a violation of the collective agreement on the basis that the discipline was unjust and that it was retaliation for past union issues. It sought pre-hearing production of the communications between the Hospital and the lawyer retained to conduct the investigation. The Hospital objected to the disclosure partly on the basis that the communications were protected from disclosure by solicitor-client privilege.
In considering whether the report was subject to privilege, the Arbitrator first noted that employers will often respond to allegations of employee misconduct by conducting an investigation. Sometimes employers will conduct the investigation themselves, while other times they will retain a third party, such as a lawyer, to do so. In cases where a lawyer is retained to conduct the investigation, solicitor-client privilege will not automatically apply to communications between the parties simply because the investigator is a lawyer. Instead, it is the dominant purpose for which the lawyer is retained that determines whether the communications will be privileged.
The Arbitrator pointed out that solicitor-client privilege has a specific purpose: to enable an individual to seek and obtain legal advice in a confidential manner. In the case at hand, the Arbitrator held that the dominant purpose for which the lawyer was retained was to make findings of fact – not to provide legal advice. He stated:
I see no reason to attach solicitor and client privilege to a relationship which is not that of solicitor-client, just because one of the parties happens to be a lawyer. There are no facts upon which I could conclude that Mr. Robinson [the lawyer/investigator] 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.
The Arbitrator went on to order the Hospital to produce to the Union all e-mails, notes of conversations and other correspondence between the lawyer and the Hospital relating to the lawyer’s role as investigator of the grievor’s conduct.
In our view
The decision in North Bay General Hospital v. Ontario Nurses Association reminds employers that care must be taken in order to preserve solicitor and client privilege where a lawyer is retained to assist in responding to allegations of employee misconduct. As a starting point, the dominant purpose of the retainer should be to provide legal advice. Any investigating that the lawyer will conduct should be ancillary and only for the purpose of determining facts in order to provide that legal advice. This should be stated explicitly in the retainer agreement. In addition, the lawyer should provide a legal opinion letter, based on the outcome of the investigation, and setting out the legal advice to the employer.
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