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Important lessons for employers and lawyers on workplace harassment investigations

The Ontario Labour Relations Board has decided an important arbitral case focused on a request for pre-hearing production of information from an employer. The case, North Bay General Hospital v. Ontario Nurses’ Association 2011, was decided on October 13, 2011, and holds key lessons for employers and lawyers across Canada.

Case overview

A hospital employee faced complaints of workplace harassment from co-workers, and the hospital imposed discipline on him. The employee’s union subsequently filed a grievance with the labour relations board. The hospital retained the services of an independent outside investigator, Kevin Robinson, who was also a practising lawyer. Upon completion of the investigation, the hospital sent a letter to the employee advising him of the conclusion that he had engaged in a pattern of “bullying and/or harassing behaviour” in contravention of the hospital’s workplace harassment policy.

The grievor was told that the hospital was issuing him a written warning that harassing and bullying conduct will not be tolerated in the workplace. The hospital further advised the grievor that he would be demoted forthwith from the position of charge nurse.

The union, the Ontario Nurses Association, brought a grievance against the hospital alleging a violation of the collective agreement. The union expressed the view that the discipline was unjust and was in retaliation for the grievor’s past union activities. The union brought an application to the board for pre-hearing production of written communications and materials used in Robinson’s investigation. The hospital asserted that these communications were not relevant and, most importantly, were protected by solicitor-client privilege.

Legal questions under review

The arbitrator addressed two main questions in her written decision:

  1. Does solicitor-client privilege apply in the case where a lawyer is acting on behalf of a client as a third-party investigator?
  2. To what extent should written communications related to a workplace harassment investigation be made available to the grievor/union?

Solicitor-client privilege

As noted by the arbitrator in this case, solicitor-client privilege exists to enable a person to receive legal advice in a confidential manner. The hospital’s claim of solicitor-client privilege was predicated on the fact that Robinson was a lawyer. In noting that Robinson was retained by the hospital as an independent investigator, the arbitrator stated:

I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer. There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor.

In reaching this conclusion, the arbitrator stated that she saw no reason to distinguish between a third-party investigator and in-house internal investigator if the purpose for which they were retained was the same. Accordingly, Robinson’s communications with the hospital pursuant to the workplace harassment investigation were found not to be protected by solicitor-client privilege.

While not explicitly cited in this case, the arbitrator’s conclusions are in accord with the Supreme Court of Canada decision Solosky v. The Queen [1980], which states:

It is not every item of correspondence passing between solicitor and client to which privilege attaches, for only those in which the client seeks the advice of counsel in his professional capacity, or in which counsel gives advice, are protected.

In arriving at this position, the Supreme Court of Canada relied in part on Wigmore where the modern meaning of solicitor-client privilege was thus defined:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.

The arbitrator’s conclusion on the application of solicitor-client privilege in this case is consistent with these positions in that Robinson was acting in the capacity of a third-party investigator when gathering information and writing up an investigation report, and not in his capacity as a lawyer.

Relevant test for disclosure

Both the hospital and the union petitioned the board to apply different legal tests for the disclosure of the hospital’s investigation file and related materials in this case. Somewhat predictably, the hospital proposed a narrow test while the union put forward a more expansive test.

In deciding to apply a narrower test for disclosure, the arbitrator concluded:

I observe that while the parties disagree as to the applicable test for disclosure, I have, without making any determination in that respect, applied the more narrow test of relevance advocated by the Employer.

The union’s right to access the full investigation report

The union’s original request to view the workplace harassment investigation report in full was rejected by the hospital on the grounds that the investigation report as a whole is not relevant, as the hospital is not relying on the report in the arbitration. The hospital also submitted that it would not be calling Robinson as a witness, but would instead call each of the individuals involved in the harassment incidents.

The arbitrator found that the hospital had already relied upon the investigation report in formulating a course of discipline and issuing a written warning to the grievor. As noted by the arbitrator:

The letter written to the Grievor clearly references [the investigation report] as the basis for the Hospital’s decision to impose discipline in this case. There is no indication the Hospital conducted its own investigation and was basing the disciplinary action on knowledge it gained separate and distinct from the investigation.

The union’s right to access additional documents related to the investigation

The union alleged that the hospital’s actions in disciplining the employee were motivated by the employee’s past union activities. In an effort to prove this position, the union requested:

  • Production of all communications and correspondence related to the full range of incidents relied upon by the employer in establishing the veracity of any allegations of harassment
  • Access to documentation in the personnel file of the chief complainant pertaining to discipline imposed following a previous complaint in which the employee was involved

In granting the union’s requests, the arbitrator expressed the view that the union was entitled to consider all actions taken by the hospital that could show whether any decisions were motivated in some way by the employee’s past union involvement.

The arbitrator went on to state:

The Union also seeks production of the personnel file and employment record of the chief complainant, C.B., in this case. The Union notes that part of its case is an assertion that C.B.’s complaint in this case is motivated by an earlier complaint against C.B., which led to the discipline of C.B.. The Grievor was involved in that complaint. The Union clarified it seeks only the documents which relate to that discipline. I am of the view those documents are relevant, as they directly speak to the workplace and interpersonal history between C.B. and the Grievor.

Case disposition

The arbitrator ordered the hospital to provide the following documentation to the union:

  • All emails, notes of conversations and other correspondence between Robinson and the hospital’s human resources personnel, and the VP of Surgery and Maternal/Child Care Centres, relating to Robinson’s role as investigator of the incidents
  • All documents in the personnel and employment file of C.B. relating to the discipline imposed in respect of the complaint in which the employee was involved
  • All communications and correspondence relating to the incidents in the case at hand

Summary and key insights

This case offers a number of important considerations for employers and lawyers.

It appears doubtful that a lawyer retained for the purpose of investigating a complaint of workplace harassment or violence can claim the protection of solicitor-client privilege.

In light of the conclusions reached in this case, employers would be prudent to clearly demarcate and separate the functions of investigative analysis and legal analysis. Common sense would seem to dictate that the investigation findings should be collected, collated and analyzed as a distinct first step. In the event that legal analysis is required, the subsequent engagement of internal or external legal counsel to offer legal interpretation and guidance would more distinctly fall under the protection of solicitor-client privilege.

This finding raises important questions about the extent to which the solicitor-client privilege protection can be applied to other corporate fact-gathering initiatives undertaken by lawyers, such as the conduct of a workplace risk assessment (as required in Ontario under the Bill 168 amendments to the Occupational Health and Safety Act).

Employers should be prepared to disclose investigation reports and related documentation to a grievor and his or her union representative(s) in the event the reasonableness of actions taken by the employer following the investigation are in dispute. This may include not only the full investigation report, but details of communications between the investigator and other workplace parties involved in the investigation (e.g., human resources, supervisors, managers, etc.).

It is worth noting that, despite applying the narrower test for disclosure advocated by the hospital, the arbitrator came to the conclusion that, on the facts of this case, the union was entitled to access a wide range of communications and correspondence connected to the harassment investigation conducted by the employer.

Conclusion

The arbitrator’s findings in this case should be considered in the context of the growing codification of the employers’ obligation to prevent, control and respond to workplace harassment. In Ontario, for example, the Bill 168 amendments to the Occupational Health and Safety Act mandate specific requirements to be followed by employers including a responsibility to investigate incidents and complaints of harassment.

The inevitable result of more far-reaching workplace harassment legislation within some Canadian jurisdictions is an increase in the overall number of harassment in the workplace complaints. As a corollary, employers are forced to conduct an ever-increasing number of harassment investigations and in so doing, must carefully navigate new laws such as the Bill 168 amendments.

This case provides important new considerations that Canadian employers should interpret and apply with appropriate care and attention to their workplace investigations process.

David Hyde
David Hyde & Associates

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David Hyde

Security and business risk consultant at David Hyde and Associates
David Hyde, M.Sc, CPC is a security and business risk consultant, author and educator with 26 years of broad-based leadership experience. He is principal consultant with David Hyde and Associates and in this role is a trusted advisor to a number of Canada’s top corporations on operational and reputational due diligence matters. Read more
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