Workplace Investigations

Access to Investigator’s Notes

 

Can the Interviewed Person Obtain Access to the Investigator’s Notes ?

The short answer to this question is yes, provided that the notes are strictly notes of the interview and do not contain editorial advice or other commentary from the person making the notes.

The decision of Master MacLeod in Hart v Canada deals with this issue. The facts showed that the plaintiff had provided a statement to counsel for the defendant related to litigation in which he was not then a party.  Following the end of this litigation, he then became a plaintiff and commenced his own action.

The plaintiff sought production of the statement which had given to counsel for the defendant some six years previously.

The court found that there could be no confidence in this statement between these two parties. Both legal advice and litigation privilege were unsuccessfully asserted. The court stated:

I should note that counsel for the Attorney General also attempts to assert solicitor client privilege.  No doubt one purpose of the interview besides developing litigation strategy was to provide the client with legal advice in connection with the litigation but there is no suggestion that the document itself contains legal advice or communication with the client.  In any event the claim of privilege over the statement taken from the plaintiff founders on the same issue of confidentiality.  It cannot be reasonably argued that an interview with Mr. Hart is confidential with respect to him.  He was a participant in the interview and he was permitted to have an observer present.  So the interview and the information provided by Mr. Hart is not privileged and if the B.C. authorities are accepted a record of the interview would not be privileged against him once he became a plaintiff.

This decision was upheld on appeal by De Sousa J.

The real world application of this decision may be questionable, in the absence of an authority figure to order production. This issue arose due to litigation between the parties. The best argument to advance the employee's position in this context is that the refusal to provide such notes is a breach of the duty of fairness at the time of termination, given the law in favour of production.