January 22, 2015 By: Jim Anstey
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The Ontario Superior Court of Justice released an interesting decision this month involving a party’s right to production of an independent investigator’s report and file where the investigator was also a lawyer. In Howard v. London (City), the plaintiff, Ms. Howard, was dismissed by the City of London, allegedly for cause, after the City received the results of an independent investigation conducted by a lawyer.

The City acknowledged that it terminated Ms. Howard’s employment based on the contents of the investigator’s report but claimed the report and supporting documents were protected by solicitor-client privilege and, as a result, it had no obligation to disclose the report and file to Ms. Howard. While the facts underlying such a report could likely be obtained by other means, having the report would, amongst other things, permit Ms. Howard to determine if the investigator found evidence that supported her and would allow her lawyer to better test the veracity of witnesses.

Ms. Howard was the Director of Social Services and Community Support Services at the City prior to the termination of her employment. She was also assigned additional duties at a long-term care home operated by the City. The investigation in question was initiated after an 81-year-old resident of the home packed up his belongings and left the home after sundown unbeknownst to his caregivers. Unfortunately, he was struck and injured while trying to cross a busy street and later succumbed to his injuries. Ms. Howard was apparently away on holidays when this incident occurred.

Ms. Howard initiated an investigation of the incident, however the City instructed her to end her investigation after it decided to have the matter reviewed by an external investigator. On the advice of the lawyer retained to represent the city with respect to the incident, the City retained a different lawyer to conduct the review. Ms. Howard was advised that the review was for “human resources purposes”. She was also advised that she did not need to worry about the investigation because the City held her in high regard, and that she did not have the option to have legal counsel present when being interviewed for the investigation.

The Master who heard and decided this matter reviewed the relevant case law and confirmed that the law may afford a party the right to claim solicitor-client privilege over the product of an investigation conducted by a lawyer, but only in certain circumstances. He emphasized that each case must be considered on its own merits. In determining this question, the Court must look at the actual functions being carried out by the lawyer investigator. 

Where the lawyer investigator is tasked only with performing a fact-finding mission (to identify and interview witnesses and to amass relevant documentation), the product of the investigation will not be protected by solicitor-client privilege and must be produced in litigation. At the other end of the spectrum, where the lawyer investigator is instructed to provide legal advice on the matters at issue in the litigation, in addition to the fact-finding mission, the product of the investigation is more likely to be protected from disclosure.

In Howard, the terms of reference issued by the City called for the lawyer to provide a report containing “findings of fact and independent privileged recommendations, opinions and advice”. It included several issues that the City sought addressed, which were drafted principally as questions about whether regulatory standards and the City’s policies were breached in relation to the incident at the long-term care home.

The Court ultimately decided that the investigation report and file were not protected by solicitor-client privilege, and the City was ordered to provide a copy to Ms. Howard. In the Court’s view, the advice sought in the terms of reference was not truly “legal advice”. The Court noted that it is helpful in the analysis to consider whether the functions performed by the lawyer investigator could have been performed by a non-lawyer:

[69] Simply because a lawyer who perhaps is familiar with automobile mechanics is asked to put that additional expertise to work in determining the cause of an engine failure would not, in my view, give rise to an entitlement to treat his report as protected by any form of solicitor-client privilege.

[70] When a lawyer is retained to investigate and report on facts he is not acting in his capacity as legal adviser. Even when asked to provide advice, unless that advice is legal advice, no privilege protects the investigation.

While this case is relevant to all areas of law, it is particularly important in the context of employment law. Independent investigations are probably most often used for workplace matters, especially to inquire into allegations of workplace violence and harassment (including harassment of a sexual nature). The Howard decision should serve as a reminder that using a lawyer to investigate such matters provides no guarantee that the report and supporting documentation can be protected from production by a claim of solicitor-client privilege. Where the functions carried out by the lawyer could also be carried out by a non-lawyer, the Courts are less likely to allow a claim of privilege.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law