Law Times

Law Times • March 23, 2015 Page 7 www.lawtimesnews.com COMMENT Case offers guidance on privilege in workplace investigations BY DAVID HARRIS For Law Times uperior Court Master Donald Short's re- cent decision in Howard v. London (City) has turned the spotlight on the importance of workplace investigations and the law with re- spect to privilege relating to the investigator's report. The issue before Short arose in the context of a wrongful dismissal action. The plaintiff had been working for the city as director of social community support services in addition to taking on responsibili- ties for a city-owned nursing facility, Dearness Home. An elderly resident who had left the residence died while attempting to cross a street. The city retained a London lawyer, John McNair, to conduct an investigation into the circumstances of the death. Following the completion of his report, the city terminated the plaintiff, Cindy Howard, for just cause in relation to the incident. The plaintiff moved successfully for the production of the McNair report. The first issue before Short was whether the report was subject to privilege as legal ad- vice. Short conducted a factual review of the context of the retainer to determine the mandate of the investi- gator. He found there was no privilege for legal advice, noting the retainer bore no reference to the possible termination of any employee, let alone the plaintiff specifically. It is evident that the very fact that the report came from legal counsel does not end the analysis. To claim privilege for legal advice, the factual con- text must support the assertion that the intention was to and did in fact provide a legal opinion on the rel- evant issue. More significantly, however, the same decision dealt with an important concept, common interest, that will have significant implications for the future conduct of workplace investigations. Short noted that during repeated interviews with the plaintiff, she had received assurances she was not in a position of personal vulnerability. Howard also asked if she should retain legal counsel and was not only denied the right to have counsel represent her but was told such an action was not necessary. It was clear on the evidence that there was no ex- pectation on the part of the plaintiff that her position was in jeopardy. In this instance, the court found there was a com- mon interest between the plaintiff and the employer and, hence, would have ordered production of the re- port even if it had accepted the privilege claim. As part of the decision, Short referenced a 1982 ruling in R. v. Dunbar in which the court stated: "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 inappli- cable, and either party may demand disclosure of the communication. . . ." As short noted in Howard: "In my view that is ex- actly the situation here and no privilege can be assert- ed against the plaintiff who was intimately involved in the conducting of the subject investigation." Thus, in circumstances where the employee has received assurance that she has no vulnerability and assists in and is "intimately involved" in the investiga- tion, the party sharing the common interest cannot assert privilege against her. There are other issues as well. The court determined the employer was, in any event, also estopped from asserting privilege against her. "No contrary evidence was filed to challenge her sworn testimony to the effect that was repeatedly as- sured 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 atten- dance," wrote Short. "In such circumstances it would seem to me that the City is estopped from asserting a privilege interest in the Investigation against the plaintiff." Although the use of the admission in the merits of the case remains a live issue, it should logically follow that estoppel should prevent the substantive use of the contents against the person in the action. The decision brings into focus, and rightly so, the relationship between the investigator and the person under questioning. It does seem inherently unfair to allow the investigator to be friendly with the person subject to the interview and then use the contents of the session to hammer home a position against her. The investigator, particularly appearing as a neu- tral third party, must take care in discussing the likely culpability of the person subject to questioning. Gillian Shearer, a partner at Shearer Lattal LLP and the author of a soon-to-be-released text on workplace investigations, offered this view of the decision: "Mas- ter Short was clearly inf luenced by the unfairness of this case. While this case may not signal a dramatic shift in the law respecting privilege, it nonetheless serves as a strong reminder that when faced with a workplace investigation, it is essential to slow down and to mindfully consider its scope and purpose, as well as the intended use of the resulting report. It also rings the familiar bell that the investigator must always conduct investigations and write reports based on the presumption that there will be no privilege attached." Barry Fisher, a Toronto employment law mediator, said: "This case may strengthen the position of a per- son being either investigated or interviewed in a work- place matter to insist on the right to have their own lawyer present during questioning. At present, many companies do not allow the presence of employee counsel in an investigation, a position which is highly in dispute." LT uDavid Harris, a former lawyer, is publisher of Em- ployment Law Books (e-mploymentbooks.com) as well as author of Wrongful Dismissal, published by Car- swell. u SPEAKER'S CORNER Trudeau does good job in handling MP sex scandal t could have been a scandal that rocked the Liberal party to its core and spelled the end of Justin Trudeau as its leader with much depending on how he han- dled it. Allegations of "serious personal mis- conduct" levelled against two Liberal MPs by two female NDP MPs hit the head- lines late last year. One of them went right to Trudeau and named Massimo Pacetti of Montreal and Scott Andrews of New- foundland as the two Liberal MPs involved. It's rare to see personal misconduct al- legations among MPs from different par- ties. It's so rare, in fact, that there are no parliamentary rules for dealing with them. House of Commons Speaker Andrew Scheer didn't know what to do and so he ducked the issue by refusing to conduct his own investigation. Even NDP Leader Tom Mulcair didn't want to investigate the claims of the two women who are, after all, his own MPs. It was all up to Trudeau. He had the most to lose as the most popular politician among female voters in Canada. One wrong move or one indication that he wasn't as respectful to women as he ap- peared to be could mean a loss in next fall's election and the end of his political career. Trudeau moved with incredible speed. He shocked the political world in Ottawa by suspending both Liberal MPs pending the outcome of the investigation. The alleged victims had left him with no choice. They had chosen not to make their accusations public either for personal reasons or to prevent a third party from using the incidents against them. It was a smart decision on their part. They wanted to avoid the blame-the- victim scenario. Trudeau, rather than being the judge himself, brought in Toronto lawyer Cynthia Pe- tersen. She has handled numerous similar cases for various organizations in the past. Over time, all sorts of sordid details began leaking out and eventually reached the news media. The misconduct allegations were sexu- al. They became uglier as time passed. It dealt with one woman alleging one of the Liberal MPs had lured her to a hotel room for a nightcap after a sporting event last March. The evening allegedly went fur- ther than it should have. All that remained was to determine whether consent had been explicit or not. A second woman, who was reluctant to tell her story even in private to Liberal staff trying to help, alleged in private that one of the MPs had forced himself on her after she refused to consent. The woman alleged one of the Liberal MPs had followed her home, forced his way through her apartment door, pushed her against a wall, and ground his pelvis against her before she could get him to leave. The two Liberal MPs kept denying anything untoward had happened and said they had no idea what the women were talking about as bits of information kept coming out in dribbles. It was worse than that. A report circulated widely in recent weeks suggested two other women had complained they had been victims of sexual harassment as well. There was no indication of who they were or of their political party. Trudeau said nothing publicly about the second pair of alleged victims. Lesser politicians would have fallen into the political mud pit by denying that anyone from their party was involved. Above all, Trudeau looked clean be- cause he steadfastly kept his distance from the mess as he waited for Petersen's report on the issue. If Trudeau had made silly remarks about the issue, he could have hurt himself in the eyes of the public. There are times in politics when silence is the best tactic, es- pecially on sensitive matters like this one. Finally last week, Trudeau got his report from Petersen and his office announced last Wednesday that Pacetti had decided not to run in the next general election. Did that mean Pacetti felt the report had cleared him of any serious personal misconduct or did it mean he believed that whatever the report contained was damning enough to prevent him from running for re-election? "Over the past months, I have been forced to handle a sit- uation which concerned only my personal life but has interfered with my ability to represent my constituents in the most ef- fective way there is," he wrote in an e-mail circulated to the news media. His suspension from the party last November turned into a resignation last week that will be effective when the gov- ernment calls the election. As for Andrews, he said he was "as- tounded" that his suspension could ever become a dismissal amid reports last week the party would make it permanent. Andrews said he would sit as an inde- pendent MP and would decide whether to run in the next election. Trudeau, who had yet to decide on the MPs' fates, wasn't talking last Wednesday. Trudeau's people said bluntly: "When we have anything else to add, we will no- tify you." After the two MPs made their statements, Trudeau thanked Petersen for her work. It was the right approach. LT uRichard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. S The Hill Richard Cleroux I

• Cover