Litigation Privilege & Workplace Investigations
Workplace Policy and the Purpose of the Investigation
An early example of litigation privilege in a workplace human rights context is Order F2003-005, a decision of the Alberta Office of the Information and Privacy Commissioner concerning access to a University of Calgary investigative report.
The applicant had made a human rights complaint against the University. In rejecting the employer’s claim of litigation privilege, the decision considered several circumstances:
- The investigator had orally disclosed much of the report to the applicant.
- The investigator stated that no important or relevant information had been withheld from her.
- The letter dismissing the complaint referred to the report without otherwise explaining the decision.
- The investigation was undertaken to examine the complaint, rather than in response to threatened legal proceedings.
- The investigator’s neutrality was treated as an indication that the report was not intended for litigation.
- The investigation implemented the employer’s Sexual Harassment Policy and sought to determine the merits of the complaint.
Some of these considerations require caution. Disclosure of a report’s substance may raise waiver issues, which should be distinguished from whether privilege arose in the first place. Similarly, investigator neutrality does not necessarily undermine litigation privilege. An independent assessment may be particularly valuable to counsel evaluating a threatened claim.
The most significant consideration was the investigation’s purpose. It was undertaken to examine the merits of a workplace complaint under an existing policy.
A policy requiring investigation is evidence of an operational purpose. It should not, however, be treated as automatically defeating litigation privilege. The inquiry remains whether particular records were created for the dominant purpose of preparing for reasonably contemplated litigation.
Anticipated Litigation Does Not Establish Dominant Purpose
The recent decision in Ms. V v. The Kamloops and District Elizabeth Fry Society and another, 2026 BCHRT 198 illustrates this distinction.
The employer relied on an independent investigation in defending a sexual-harassment complaint. The complainant challenged its fairness and sought investigation records.
The Tribunal accepted that litigation was reasonably contemplated. Nevertheless, the mandate to determine whether allegations were substantiated and assess credibility did not establish litigation as the dominant purpose of creating the interview records. Descriptions of the investigation as privileged and confidential were insufficient.
The Tribunal ordered production of witness interview notes, interview memoranda and telephone memoranda. Draft reports and personal analytical notes were withheld because their relevance had not been established. Confidential employer–lawyer advice remained protected, and reliance on the investigation report did not waive that privilege. The principal disclosure analysis appears at paragraphs 47–74.
The reasoning in Ms. V warrants a qualification. Fact-finding and credibility assessment are necessary in both workplace investigations and litigation preparation. Those functions alone should not determine the privilege question. Their purpose must be assessed in the circumstances in which the work was commissioned and performed.
An investigation may inform decisions about discipline, workplace remediation, legal exposure or the defence of proceedings. The prospect that its findings will eventually be useful in litigation does not establish that litigation preparation predominated when the records were created.
Changing the Context of the Investigation
The purpose of an investigation may evolve. An initial inquiry into workplace events may later become principally directed toward preparing for litigation.
This issue was considered in Bank of Montreal v. Tortora, 2009 BCSC 1224.
The Bank sued two former employees over alleged commission splitting and their acceptance of allegedly fraudulent appraisals used to support mortgage loans. The disclosure dispute concerned notes and reports of an external Certified Fraud Examiner retained through the Bank’s external counsel.
The court examined two questions: whether litigation was reasonably contemplated when the material was created, and whether litigation was the dominant purpose of its creation.
During the initial investigation, the examiner’s task was to determine whether there was a basis for action against the employees. At that stage, litigation was not reasonably contemplated. The investigation also served purposes beyond litigation, including examining the underlying events and possible systemic concerns.
The court recognized that the circumstances could change as the inquiry progressed. On the facts, the decision to terminate the employees marked the point at which the dominant-purpose test was satisfied. Earlier documents were ordered produced, while documents created at or after that point were protected.
Tortora does not establish termination as a universal dividing line. Its significance is that privilege must be assessed in light of the purpose operating when the records were created. A later development should not be assumed to confer privilege retrospectively on earlier investigative material.
No Blanket Protection for Subsequent Records
The changing context must also be distinguished from an assumption that every subsequent document is privileged.
In Peel District School Board v. OSSTF, 2012 CanLII 11049, Arbitrator Slotnick considered litigation privilege over records generated during an investigation associated with an employee’s removal from duty and subsequent termination.
Although litigation could be anticipated, that did not establish privilege over every investigative document. The dominant-purpose requirement still had to be applied to the records in question. The investigation’s principal purpose remained investigating the alleged misconduct.
The distinction is important. An employer may reasonably expect a grievance or dismissal claim while continuing to gather evidence principally to determine what happened and what action is warranted. Anticipating the dispute does not necessarily change the purpose of that evidence-gathering exercise.
The later appellate proceedings in Alberta v. Suncor Energy Inc., 2017 ABCA 221 further demonstrate the need for scrutiny of investigation records. The Supreme Court’s official case summary records that the Alberta Court of Appeal rejected an overarching dominant-purpose determination and required further examination of the documents and privilege claims.
Relevance, Confidentiality and Privilege
Ms. V also demonstrates why these concepts should be kept separate.
A document may be confidential without being privileged. A document may be withheld because its relevance has not been established, without any determination that it is privileged. Conversely, confidential legal advice requires its own privilege analysis.
The refusal to order draft reports and analytical notes in Ms. V should therefore not be understood as a general immunity for an investigator’s internal working papers. Their potential relevance will depend on the issues and evidence in the particular proceeding.
Assessing the Claim
The authorities call for examination of the actual purpose of the work. Relevant considerations include the nature and timing of threatened proceedings, the commissioning instructions, the decisions the investigation was intended to inform, and the purpose of creating particular records.
A workplace policy may help explain why the investigation began. Subsequent events may change its purpose. Neither circumstance eliminates the need to establish the privilege claimed.
An independent investigator can assist litigation preparation. Equally, an investigation undertaken through counsel may remain principally directed toward resolving workplace misconduct. The substance of the mandate and the circumstances of the work carry greater weight than the privilege label attached to the file.