According to a recent Alberta court decision, unless it was investigated by a lawyer, the answer is probably no. In the realm of workplace investigations, the case of Prosser v. Industrial Alliance Insurance and Financial Services Inc (2024 ABKB 87) serves as a compelling example of why hiring a lawyer to conduct investigations is essential for privilege and confidentiality.
When allegations of harassment arose against Paul Prosser, his employer, Industrial Alliance Insurance, retained a human resources consultant to conduct the investigation instead of a lawyer. When Mr. Prosser was terminated by his employer for cause, he sought disclosure of various records and information related to the investigation, which the employer claimed were privileged.
The employer claimed that the records and information obtained during the investigation were privileged because they were prepared in contemplation of litigation and for the purpose of obtaining legal advice. The court did not agree, finding that privilege did not apply to this investigation conducted by an HR consultant.
The court’s detailed examination of various types of privilege, including litigation privilege and solicitor-client privilege, demonstrates the importance of these legal concepts. Litigation privilege protects documents created primarily for the purpose of litigation, while solicitor-client privilege covers communications between a lawyer and their client intended to be confidential and for the purpose of seeking or giving legal advice. Privilege is the ultimate form of confidentiality, not even a Court can require disclosure of privileged information. This level of confidentiality is often part of the reason an employer turns to a third-party investigator – to ensure confidentiality along with an unassailable process.
Unfortunately for the employer, they did not retain a lawyer for the investigation, so they were ordered to disclose the name of a complainant, particulars of the complainants’ allegations, and copies of the investigation materials.
In addition to privilege, the involvement of a lawyer ensures that the investigation is conducted with a high degree of confidentiality. Lawyers are bound by strict ethical standards to maintain the confidentiality of their clients’ information. This is crucial in workplace investigations, where the trust of employees is paramount. Employees are more likely to come forward with information if they know it will be handled discreetly and confidentially, with the protection of privilege.
In conclusion, the case of Prosser v. Industrial Alliance Insurance and Financial Services Inc highlights the unique role that lawyers can play as workplace investigators. Their unique position in securing legal privilege, and ability to ensure a fair and thorough investigative process is indispensable. By hiring a lawyer to conduct investigations, organizations can protect their interests, uphold the rights of all parties involved, and manage risks effectively.
This blog is not legal advice and only provides general information. Every situation must be considered on its own facts.
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