Standing in the Employer’s Shoes? Workplace Investigations and Solicitor-Client Privilege in Starrs v Troczynski, 2024 BCSC 2267

Workplace investigators frequently advise their clients that an investigator’s report is not necessarily subject to solicitor-client privilege, and may be subject to production in the event of litigation, especially where the report serves as the basis for disciplinary action. We previously summarized a decision of the Ontario Superior Court of Justice–Jarvis v Toronto-Dominion Bank, 2024 ONSC 62260 (“Jarvis”)–where the court ordered the defendant employer to produce unredacted versions of documents related to an internal investigation, despite the fact that doing so would identify complainants who had been promised anonymity.

As we noted in our analysis of Jarvis, employers are very rarely in a position to offer unqualified guarantees of anonymity or confidentiality. The same is true of workplace investigators, even where the investigator is a lawyer. Not all communications between lawyers and their clients are subject to solicitor-client privilege, and it is for a court to decide whether an investigator’s report constitutes or includes privileged legal advice that is shielded from production. An investigator’s report that is “upstream” of legal advice is also not necessarily shielded from production.

In Starrs v Troczynski, 2024 BCSC 2267, the Supreme Court of British Columbia (“the Court”) declined to order production of a workplace investigator’s report that had been relied upon by counsel to the plaintiff’s former employer, but which had been prepared by a third-party investigator who does not provide legal services. The report had been marked as “Solicitor-Client Privileged”, and the Court accepted that the employer “viewed the investigation and the report as being prepared only for their counsel and management on a ‘need to know’ basis.”

Importantly, the defendant in Starrs is not the plaintiff’s former employer, Heidelberg Materials Canada Ltd (“HMC”). Rather, the defendant is the law firm from which the plaintiff sought legal advice after being dismissed by HMC. The plaintiff alleges that he intended to bring a wrongful dismissal action against HMC, and that negligence on the part of the defendant law firm prevented him from doing so before the end of the limitation period. The plaintiff is currently pursuing a negligence claim against the law firm, and sought an order compelling HMC to produce the workplace investigator’s report that informed the original dismissal decision.

There were two questions before the Court in Starrs. The first was whether the workplace investigator’s report is subject to solicitor-client privilege; the second was whether to grant a production order against HMC, which is not a party to the current action. In answering the first question, the Court considered whether the workplace investigator had been “standing in the shoes” of HMC when it prepared the report. 

Here, the Court followed the decision of the Ontario Court of Appeal in General Accident Assurance Co v Chrusz (“Chrusz”), 1999 CanLII 7320, which stands for the proposition that communications to or from a third party will generally not be subject to solicitor-client privilege, except where the communications are “in furtherance of a function that is essential to the existence or operation of the relationship between the solicitor and the client.” For example, if the third party was, in effect, acting as a conduit between the client and the solicitor, communications between it and either of the principals will likely be subject to privilege.

The Court in Starrs determined that, because the workplace investigator had been retained and directed by HMC, it cannot be said to have acted as a conduit between client and solicitor. Furthermore, the Court observed that “when a third party is tasked with gathering information from outside sources and passing that information to a lawyer so that the lawyer can advise his or her client, the third party’s function will typically not be “essential” to the solicitor-client relationship. In other words, direct contact between the investigator and HMC’s counsel would not necessarily have led to a different conclusion.

Despite rejecting HMC’s claim of privilege, the Court nonetheless declined to order production. In the Court’s view, the report’s probative value was “questionable”, and production could expose certain individuals to “something more than embarrassment or mere adversity.” It is important to note that, unlike the documents in Jarvis, the report in Starrs was 1) in the possession of a non-party, and 2) not obviously relevant to the dispute between the parties. As a result, the threshold for production was elevated.

Like the decision in Jarvis, the decision in Starrs does not make new law. It does, however, offer a concise, accessible summary of the law of solicitor-client privilege as applied to workplace investigations.