“Waiving” Goodbye to Solicitor-Client Privilege
There are a number of reasons an employer may retain a lawyer to conduct an investigation: investigative experience, to avoid a potential or actual conflict of interest, to avoid potential bias and the perception thereof, and to ensure that the investigation is not deficient, leaving the employer vulnerable to claims that result in reputational and other damages (consider one such cautionary tale in Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133).
Another significant reason employers retain lawyers to conduct workplace investigations is to maintain privilege over legal advice provided by the investigator undertaking the investigation. Of all the reasons to retain a lawyer, this reason may be the most challenging to manage.
As simple as it may be to ensure that privilege attaches to solicitor-client communications, it can be just as easy to waive the privilege and remove the protection. This was demonstrated by a recent British Columbia arbitration decision: Re: British Columbia Emergency Health Services and Ambulance Paramedics of British Columbia (CUPE Local 873) (2017), 276 LAC (4th).
Waiver of Privilege
British Columbia Emergency Health Services (“BCEHS”) retained a lawyer to conduct an investigation into complaints made by employees at an ambulance station. Subsequently, CUPE Local 873 (the “Union”) filed a grievance about the employer’s investigation of the complaints, and applied for disclosure of the lawyer-investigator’s investigation report to BCEHS (the “Report”).
After assessing the evidence of both the lawyer-investigator and BCEHS, the arbitrator concluded that solicitor-client privilege attached to the Report, as well as the other documents sought by the Union. However, the arbitrator also found that BCEHS had waived privilege over extensive parts of the Report.
This waiver occurred when BCEHS offered the conclusions from the Report to the BC Labour Relations Board to assist it in coming to a conclusion in a separate, but related, matter. This disclosure, combined with further disclosures made by BCEHS at a meeting with Union representatives, amounted to a voluntary waiver of the specific information disclosed, as well as a significant portion of the Report.
The arbitrator’s decision serves as a valuable reminder of the law of waiver of privilege in this context. The BCEHS, the Union, and the arbitrator all relied on S. & K. Processors Ltd. v Campbell Avenues Herring Producers Ltd.,  4 WWR 762 (BCSC) (at para. 6), where Justice McLachlin, as she then was, stated:
Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege (1) knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver as to the entire communication.
The arbitrator concluded that it would be “unfair” for BCEHS to pick and choose parts of the Report to disclose and to retain privilege over the rest. As a result, the arbitrator held that privilege had been waived over a much greater extent of the Report than BCEHS had intended to disclose, and BCEHS was required to produce that portion to the Union.
In light of the arbitrator’s decision, employers should be careful of the following:
- If you choose to disclose portions of privileged information or documents, you may not have full control over the scope of disclosure. In the arbitration, BCEHS’s waiver of privilege over a carefully selected portion of the Report meant that it lost control over the privacy of a much greater extent of the Report.
- If you waive privilege over documents in one proceeding, you risk waiving privilege over those documents in any related proceeding where you waived the privilege. BCEHS disclosed the conclusions of the Report in a parallel Labour Relations Board proceeding, which constituted waiver in the subsequent arbitration.
- If you have concerns about solicitor-client privilege and/or use of the report in possible litigation, devise and adopt a strategy prior to initiating the investigation. You likely can structure the investigation, and any related reports, in a way that allows the disclosure of certain information without risking a waiver of solicitor-client privilege.
- Before making any disclosures relating to interactions you have had with counsel, it is worth getting legal advice about the risk of waiving solicitor-client privilege. Even better, try to determine your needs and potential needs prior to the investigation, and structure it accordingly.