Overview

The two privileges important to a workplace investigation are solicitor client and litigation privilege.

Generally, the assertion of solicitor client privilege will turn on a factual review to determine the mandate of the investigator. The issue will be whether the lawyer retained for the investigation was requested to perform only a factual investigation or was this mission also to include a legal opinion on the issue being reviewed.

Should the investigator be retained as legal counsel, it would difficult to assert that the intent was to conduct a fair and impartial investigation, given the duty to protect their client’s best interests. There would need to be full disclosure of the conflicting interests which would likely make this unattractive for the person being interviewed, particularly for the suspected one.

Litigation privilege is a difficult position in this context as this requires actual litigation or a claim which is reasonably probable. This is not the typical context of such an investigation. It may yet arise where the alleged victim has threatened litigation in advance of the investigation.

The presence of a workplace policy mandating a workplace review will have a significant impact on these this issue, particularly when required by statute, such as human rights and occupational and health and safety legislation.

Even when the issue being examined is one beyond the ambit of these or similar statutes, the policy manual setting out investigative procedures will similarly be a detrimental influence upon the assertion of this privilege.

To succeed on a litigation privilege submission, it must be shown that the dominant purpose of the investigation is for the purposes of the actual or probable litigation. Where there is a pre-existing corporate objective such as this mandated investigation by law and/or the policy document, this objective will be difficult to attain.

Further, given litigation and an affirmative defence of a fair and proper investigation to meet allegations of unfairness, which is typical, this will likely be considered a waiver of any privilege.

Also, promises of no jeopardy to a person interviewed, will also lead to a denial of privilege.

These issues are discussed in detail in the following review.