The recent decision in Howard v City of London by Master Donald Short illustrated with considerable clarity how important workplace investigations and the law are in terms of the privilege to report to the investigator. This topic came before the Master in the form of wrongful dismissal action. The City of London had once employed the plaintiff as Director, Social Community Support Services. He had also been charged with running a city-owned and maintained nursing facility named Dearness Home.
Sadly, an elderly resident exited the nursing home one day and was struck while crossing the street. The resident did not survive.
In response the unfortunate event, the City of London retained a lawyer by the name of John McNair to conduct a thorough and objective investigation. Once his report was completed and submitted, the relevant management figures reviewed the information he gathered and terminated the plaintiff based on allegations of just cause regarding responsibility for the elderly resident’s demise.
The plaintiff argued successfully for the court to produce the McNair report. This, then was the first issue. The Master was called to decide whether such information is indeed subject to legal advice privilege. The Master reviewed the context of the lawyer’s retainer agreement to better understand McNair’s mandate. He concluded there was no legal advice privilege, given that the retainer made no reference to the potential resultant termination of any employee nor the plaintiff specifically. It is clear, then, that just having been created by legal counsel does not sufficiently end analysis of the report. To qualify for legal advice privilege, it must be proven that the information in question was intended to (and ultimately did) provide legal opinion relevant to the situation being currently litigated.
Equally, or perhaps even more, important is that the same decision reveals a critical concept commonly understood as “common interest.” This will have critical implications for future workplace investigations.
The Master noticed that the plaintiff had been subject to a number of interviews throughout the investigation. During these interactions, she was reassured multiple times that she was not personally vulnerable to the findings of the report. The plaintiff, a Ms. Howard, asked if she should retain legal counsel. She not only was denied the right to do so, but explicitly informed such action would not be necessary. This very clearly indicates that there could be no reasonable expectation on the part of the plaintiff that her employment was jeopardized or under threat.
To speak to this, the court referred Sopinka and Lederman in regards to joint or common interest:
Joint or Common Interests
§14.50 Joint consultation with one solicitor by two or more parties for their mutual benefit poses a problem of relative confidentiality. As against others, the communication to the solicitor was intended to be confidential and thus is privileged. However, as between themselves, each party is expected to share in and be privy to all communications passing between either of them and their solicitor, and, accordingly, should any controversy or dispute subsequently arise between the parties, then, the essence of confidentiality being absent, either party may demand disclosure of the communication. “Moreover, a client cannot claim privilege as against third persons having a joint interest with him or her in the subject matter of the communications passing between the client and the solicitor.” ….
In this particular case, the court concluded that such a common interest between the plaintiff and the employer did, in fact, exist. Put in the simplest possible terms, when the company retained legal counsel to conduct the investigation, he acted as a solicitor on the organization’s behalf – but, as a member within it, Ms. Howard was also entitled to information that would otherwise be confidential. The court effectively found that the company and Ms. Howard were defined as a single party. Therefore, the report would be produced, regardless of whether a privilege had been successfully asserted.
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….
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.
Therefore, when employers ensure, guarantee, or otherwise communicate to their employees that they are not vulnerable in order to coerce them into assisting in and being “intimately involved” in an investigation, no privilege can be asserted against that party by a body that shares common interest.
Furthermore, the court found that the employer was barred from asserting privilege against the plaintiff:
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.
While incorporating admission in the merits of the action persists as a live concern, it logically follows (or, at least, it should) that this estoppel would undermine any substantive exploitation of contents of any admission by the person involved in the action.
The decision also draws the relationship between the investigator and the person subject to questioning sharply into focus, an area absolutely worth of intense scrutiny. It would seem inherently unequal and wrong for the investigator to ingratiate themselves personally to a subject of the investigation and then use the information withdrawn from those interviews against that same individual.
As a neutral, third-party investigator, it is his or her duty to be even-handed and transparent in the explanation of the probable culpability of the person questioned.