Pleadings
It has been accepted that the reliance on privileged information in the pleadings in the litigation may constitute a waiver. A denial of allegations will not lead to such a waiver. Where the defence of a claim raises issues pointing to the fairness of the investigative process, then the privilege which may have otherwise applied, will be waived. 1
Conduct
Privilege can be waived when the document is given to a third party for reasons that it is an evident decision to discard confidentiality. The Federal Court of Appeal discussed this issue in Slansky v Canada.
Slansky had filed a complaint with the Judicial Council against a judge who had sat on a criminal trial in which Slansky represented the accused. Slansky sought production of a report prepared by Professor Friedland commissioned by the Judicial Council. One argument was that privilege was waived when this report was provided to the Law Society following a complaint made by the judge against Slansky. That background led to this general description on how privilege may be waived:
Voluntarily giving a document to third parties is an “obvious scenario” of waiver, because confidentiality, the prerequisite to the maintenance of privilege, has been lost.....
If a client receives a letter in confidence from the solicitor and forwards it to third parties, privilege in it is lost absent a “joint” or “common interest” between the client and the third parties.
It is typically in this context that the issue of “common interest” arises, which is intended to support the retention of legal advice privilege, as noted above and also litigation privilege. 2
The court in Fernandes v Marketforce Communications rejected the employer’s claim for legal advice privilege. An email which clearly contained legal advice and would normally be privileged was accidentally emailed to the plaintiff. The email discussed the potential termination of the plaintiff’s employment.
The plaintiff asserted that this communication terminated her employment as a consequence of which she sued, alleging constructive dismissal based on this communication.
The company’s motion to strike the offending paragraphs of the claim which referenced the questioned document failed before Sproat, J. as did the leave application.
The reasoning was based on the residual fairness:
In his Endorsement, Justice Sproat determined that the email and the attachments were part of a privileged solicitor-client communication. The inadvertent disclosure, in and of itself, did not waive the privilege. The learned judge concluded that the error was excusable and there was an immediate attempt to retrieve the information. He then went on to consider the issue of whether the preservation of the privilege would be unfair to the plaintiff.
[12] With respect to the issue of unfairness, Justice Sproat noted that the reading of the email by the plaintiff affected her state of mind regarding her employer and considered that a distinguishing feature. It related to her ability to trust her employer.
[13] Justice Sproat also felt that it would be unfair to the trial judge to have a less than complete understanding of what the plaintiff learned from the email and how it may have affected her response to her employer on April 5, 2011. Its impact on the plaintiff would be difficult to assess without the disclosure of the email.
[14] Justice Sproat ruled that it would be in the interests of justice and fairness to allow the trial judge to have access to the email. He saw no corresponding unfairness to the defendants if the email was before the trial judge.
Overall Shared
The Office of Information and Privacy Commissioner in Re Sayward Village considered whether the legal advice privilege was waived when the Mayor referenced parts of the report in the local newspaper and also cited parts of the report in the public council meeting.
An influential aspect of the decision was that a public body sought to follow a “policy of transparency” was the motivator for the questioned conduct.
This issue was not argued in Re Resort of Municipality of Whistler, but the Adjudicator offered her view, in any event, that the fact that the complainant was advised that her complaint was made in good faith but unsubstantiated, could not be said to be a waiver in law of the legal advice privilege which was successful in defending the request for access under the statute:
Neither party raised the issue of waiver but I will address it briefly here. After the investigate on was completed, the Director told the applicant that the outcome of the investigation was that his complaint was made in good faith but was unsubstantiated. I find that the Director’s actions do not mean that there was an express or implied waiver of privilege by Whistler of the Investigation Report. My conclusion that privilege was not waived is consistent with several previous orders that have determined that disclosing part of a privileged communication does not result in waiving privilege over all of it.[17] For example, recently Adjudicator Alexander considered this issue in the context of disclosure of part of a privileged email. In concluding that the public body did not waive disclosure over the entire email, he determined that “[t]he fact that the Agency exercised its discretion to increase transparency by disclosing privileged information to the applicant should not be weighed against it in assessing its conduct for the purpose of determining an intention to waive privilege.”[18] I agree. In the present case, Whistler’s willingness to share the Investigating Lawyer’s overall conclusions with the applicant should not prevent it from claiming privilege over it.
Joint Interest & Promise of No Jepoardy
The same decision of Master Short in Howard v City of London also dealt with an important issue which was described as “common interest” in the decision.
This decision has significant implications for workplace investigations.
The Master also noted that the plaintiff was interviewed on multiple occasions and in each instance was assured that she was not in a position of personal vulnerability. She also asked if she should retain legal counsel and was both denied the right to have counsel represent her and also told that this was not necessary.
It was clear on the evidence that there was no expectation on the part of the plaintiff that her position was in jeopardy.
The court referred to the text of Sopinka and Lederman with respect to joint or common interest:
Joint or Common Interests
The authorities are clear that where two or more persons, each having an interest in some matter, jointly consult a solicitor, their confidential communications with the solicitor, although known to each other, are privileged against the outside world. However, as between themselves, each party is expected to share in and be privy to all communications passing between each of them and their solicitor. Consequently, should any controversy or dispute arise between them, the privilege is inapplicable, and either party may demand disclosure of the communication....
[75] In my view that is exactly the situation here and no privilege can be asserted against the plaintiff who was intimately involved in the conducting of the subject investigation.
Hence, in circumstances where the employee is assured that he or she has no vulnerability and assists and is “intimately involved” in the investigation, no privilege may be asserted.
Estopped from Asserting Privilege
Master Short of the Superior Court of Ontario in Howard v City of London in his January 2015 decision, discussed above, found that the investigator was retained to conduct a fact finding investigation and not a legal opinion and for this reason ordered that the report be produced in the plaintiff’s wrongful dismissal action.
The court found, that the employer, was hence, in any event, estopped from asserting privilege against her:
No contrary evidence was filed to challenge her sworn testimony to the effect that was repeatedly assured that she had nothing to be concerned about and was told by Mr McNair not only that she did not need a lawyer but that she could not have one in attendance. In such circumstances it would seem to me that the City is estopped from asserting a privilege interest in the Investigation against the plaintiff.