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Court rejects privilege claim and orders disclosure of investigators’ notes

An ever-evolving aspect of employment law jurisprudence concerns when an employer can shield documents and correspondence relating to a workplace investigation from a former employee who has commenced wrongful dismissal litigation. A recent Superior Court of Ontario decision fell against the employer on this issue.

disclosureofinvestigatorsnotesIn Jacobson v Atlas Copco, an employee had been terminated for his alleged involvement in a physical altercation while on company property.

At the time of the employer’s investigation into the incident, the plaintiff alleged that the employee who had investigated the incident (“H”) was biased against him. As a result, another employee (“S”) was asked to review the investigation by email on which legal counsel was copied.

Following an exchange of emails, S sent an email to H that “provided [S’s] thoughts about a potential course of action.” Legal counsel was copied on this email.

The plaintiff sought production of this email.

The defendant refused, arguing that the email was privileged. It relied on the involvement of counsel as creating a privilege over the document.
In order to be privileged, the employer was required to show that the email:

  1. was a communication between a solicitor and a client;
  2. entailed the seeking or giving of legal advice; and
  3. was intended to be confidential between the parties.

The parties agreed that the first and third parts of the test were met, and the second branch was the only branch under dispute.

The Court relied on earlier case law that held that simply copying a lawyer on a communication did not render it privileged.

It found that the employer had not shown that the communication was privileged. The Court found that the likely purpose of the email was not to procure legal advice, but was rather to provide S’s unbiased opinion of events to H.

The Court also found that the message itself did not provide any explicit or implicit evidence that the email was sent with the purpose of procuring legal advice, although it declined to provide any specifics of the communication.

As a result it ordered the production of the email.

What employers need to know

Relevant documents can only be protected from disclosure if they are subject to solicitor-client privilege or some other form of privilege.

Consequently, any emails sent between employees as part of a workplace investigation that leads to a termination for just cause will have to be disclosed in any ensuing lawsuit unless they are clearly prepared for the predominant purpose of seeking legal advice.

Employers should be careful with the emails that are sent and the documents that are prepared in an investigation. As a general rule, all relevant documents must be disclosed to a former employee as part of the discovery process if the employee sues for wrongful dismissal. This includes documents that may be sensitive or considered confidential.

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Stringer LLP

Employment and Labour lawyers at Stringer LLP
Stringer LLP is a leader in Canadian HR law. For over 45 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation and pay equity, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more
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