Workplace Investigations

Qualified Privilege

An investigator appointed to inquire into allegations of wrongdoing will have a legal duty to provide the results of such a review and recommendations as to remedial action, if any, to the principal. This is more evident when the investigator has been requested to conduct such an investigation under a public statute such as the Occupational Health & Safety Act.

In such a context, a qualified privilege will arise to shield the report against any claims of defamation, save conduct which is malicious. Defamation is an intentional tort as distinguished from a negligence claim.

The Supreme Court of Canada in its 2020 decision 1 described the occasion of this privilege in these words:

An occasion of qualified privilege exists if a person making a communication has “an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or duty to receive it”: Downard, at §9.6 (footnote omitted). Importantly, “[q]ualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself”: Hill, at para. 143; Botiuk, at para. 78. Where the occasion is shown to be privileged, “the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff”:

In this instance, the issue was clear. The report passed all the tests. 2