Workplace Investigations

External Regulators

The decision of the B.C. Supreme Court in Thomson v Berkshire involved a claim which raised issues of the conduct of one of its financial advisors. It became apparent that the financial advisor was investing client funds in companies which were outside of his mandate.

The company advised its regulator by a report which by all circumstances been prepared in anticipation of litigation and regulatory actions against it.

The plaintiff asserted that this privilege was waived by its delivery to external parties in this manner.

The court agreed that Berkshire retained privilege in these documents and was not obliged to produce them to the plaintiff. It, did, however, add this caveat, alerting to the possibility that this may not end the dispute as the party in receipt may not be so bound:

Whether the documents in the possession of the MFDA and other agencies are producible is not before me.  Nothing I have said in these reasons should be taken as determining that issue.  The fact that Berkshire may be entitled to claim privilege over the documents in its possession, does not necessarily mean that other parties in possession of the same documents may not be compelled to produce them.  Different considerations may apply: College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), (2002) 2002 BCCA 665 (CanLII), 9 B.C.L.R. (4th) 1 (C.A.).