May there be a common law duty to advise on the Right to Counsel?

The protections afforded to the person being investigated for alleged wrongdoing are complicated and evolving.

These issues to be considered are:

1. Does the accused person have the legal right to counsel when he or she is interviewed by the investigator?  This question itself raises two issues, the first being the legal right to counsel under the Charter and the second as to whether this duty may arise from the implied term of fairness in the employment relationship.
2. Does the investigator have a right to access the cyber records of the employee stored on the employer's IT system?
3. Is there a right to refuse to answer a question, the answer to which may implicate the suspected one in the commission of an offence?
4. May the statement given by the accused person to the investigator be used against him or her in subsequent criminal or quasi-criminal proceedings? This issue is considered by the common law confession rule.
5. Should the suspected one know that the employer is acting in a manner which is complicit with a government authority such as the police?
6. Does the suspected one have a right to have  the investigator's notes and comment upon them?

A summary of the law on these various topics, which is discussed in more detail below, is as follows:

1. A search of stored electronic communications and notes which violates the expected confidence of the employee will not be allowed. ¹
2. The common law confession rule may apply to the interview, given existing or reasonably anticipated criminal proceedings, with the consequence that such a statement will be inadmissible in a criminal proceeding. ²
3. The right to silence may prevail where the questioned one faces criminal charges or likely pending criminal charges. This may be give rise to a civil defence to disciplinary proceedings, given termination or other discipline due to the refusal to answer such questions. This summary comes from arbitral, not common law, authorities. ³
4. There is no right to Charter protections, including the right to counsel, given the actions of a private actor, save in Alberta, and perhaps Saskatchewan. ⁴
5. The questioned one may be entitled to the notes of the investigator. ⁵

To the say the least, these issues are complex. It surely is not possible for a lay person to understand their rights, or even lack of them, in this process.

The issue may be raised that the duty of fairness and fair dealing requires the employer and its neutral proxy, the investigator, to recommend to the suspected one and indeed any person being interviewed, to retain counsel to advise them of the extent of the legal protections afforded to them and the consequential impact of statements made in this process. This may or may not be distinct from allowing counsel to be present.

Even should it be the position of the employer that legal counsel is not allowed to participate in the investigative process, this does not translate into an assertion that counsel is not required.

Such an obligation may well fit into the duty of fairness at the time of termination, given the broad interpretation given to concept recently. The Supreme Court in Matthews v Ocean Fisheries set this time as four years prior to termination.

In 2006, in dealing with the duty owed by an insurer to its client, the Supreme Court of Canada imposed a duty upon the insurer to deal with the claim made fairly, both with respect to the manner of investigation and its assessment of the claim. This was in the context of a “peace of mind” contract which admittedly is peculiar to a contract of insurance.

That being said, the "peace of mind" concept led to the fair expectation of emotional distress, rather than used to set the standards of fairness. ⁶ Fidler was decided in 2006, some eight years prior to Bhasin. ⁷

This theme was repeated in 2014 by the Supreme Court in Bhasin. The duty of good faith and fair dealing was noted to require “appropriate regard” for the interests of the other party. The determination of this duty will depend on the particular context. As stated in Bhasin:

The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner. While “appropriate regard” for the other party’s interests will vary depending on the context of the contractual relationship, it does not require acting to serve those interests in all cases. It merely requires that a party not seek to undermine those interests in bad faith.

Might such a duty require of the employer, through its investigator, the duty to advise the suspected one to retain counsel?

Although not based on this reasoning, ⁸ this was the conclusion of the panel of the Law Society of Nova Scotia in 2008, admittedly in the scope of a statutory function, offered this view in considering an application for admission, given the "serious nature of the investigative interview": ⁹

 It is the view of the Panel, that given the serious nature of the investigative interview, the Applicant would have been well served by counsel before and at the interview. It is unclear whether a caution was given to the Applicant before the interview. The Panel recommends that the person being interviewed be advised of the right to counsel and that it may be used in future proceedings. However, the Panel is satisfied the Applicant had no intent to deceive Ms. Ross at any time during the interview.

In 2016 following Bhasin in time, the Ontario court spoke to the issue of providing "due process" to the suspected one in the course of the investigation. ¹⁰ The plaintiff had been the subject of an ongoing investigation prior to his resignation. His name had been added to a database available to member banks. This process was used by member banks to report persons associated with serious banking crimes. The plaintiff was not aware of this action. ¹¹

The court found that there was an implied contractual obligation, "at a minimum" to allow the plaintiff due process and allow him to respond or refute the allegations. The important feature of this decision is that the court accepted the fundamental precept that there was a good faith "due process" term implied into the employment relationship. ¹²

As stated by Diamond, J. in this case:

[27]           If the defendant was not afforded such an opportunity, this could qualify as a breach of the duty of good faith.  The defendant’s subsequent acts as alleged in the pleading (adding the plaintiff to the BCPIO database without a proper investigation and making the representations to member banks) would be premised upon a potential breach of the duty of good faith and carried out in furtherance of that alleged breach.

This case did not conclusively define the components of "due process". In this instance it did include the right to respond to the allegations before his name was added to the database accessible to member banks.

Long before the above cases, in 2001, the Alberta Queen's Bench stated that ¹³, the investigation should be (1) fair and thorough, (2) the employee should be notified of the complaint, (3) the employee should receive a copy of the Harassment Policy, where applicable, (4) the employee should be given time to prepare and reply to the issues, (5) the employee should be given a copy of the complaint and any relevant documents material to the issue, (6) the employee should be invited to seek and employ legal counsel, and (7) detailed notes should be made of the meeting. The court added that it would have been useful to have the meeting videotaped.

The context of these remarks was not that the failure to provide one or all of these components was actionable as a breach of fairness, but rather having behaved in this manner, there was no procedural unfairness.

This issue remains to be determined.

It is to be noted that the failure to provide a warning to the questioned one and notice of the right to retain legal counsel has been determined to be a factor in the determination of whether the interview was freely given, in submissions made on the common law confession rule. ¹⁴

As noted above, the legal rights of the suspected one in the course of the investigation are, to put this charitably, complicated. The ability of a non-represented person to understand their rights in this process is close to nil or even less. The consequences of an error may be disastrous and may lead to adverse civil and/or criminal proceedings. It would not be surprising to expect that the questioned one should, at the very least, be instructed to take professional advice to understand their rights or lack of them.

A subordinate issue will be the right of legal representation during the interview.