When the North Bay Hospital responded to a complaint from an employee that a Charge Nurse was engaged in bullying and harassing behaviour it retained an independent investigator to conduct a workplace investigation. The investigator concluded that the Charge Nurse had engaged in bullying and/or harassing conduct contrary to the Hospital’s policies. The Employer issued a written warning and demoted the Charge Nurse based upon the investigator’s report. In response, the Charge Nurse grieved the discipline as being unjust and related to past “union issues.”
The external investigator retained by the Hospital was a lawyer engaged “as an independent investigator” to “investigate the concerns” relating to the grievor. The Ontario Nurses’ Association requested, among other things, the production of the communication between the external investigator and the Hospital’s HR personnel as well as the communications he had with the Vice President of Surgery and Maternal/Child Care Centres. Arbitrator Parmar ordered that “all emails, notes of conversations and other correspondence” between the investigator and the Hospital’s HR personnel and the investigator and the VP of Surgery and Maternal/Child Care Centres were to be produced to the ONA. She noted:
“Some individuals who conduct these investigations as independent third parties are lawyers; some are not. I see no reason to distinguish between these two groups if the purpose for which they were retained is the same, of investigating events to make finding of facts. I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.”
Accordingly, Arbitrator Parmar found that the communications of the external investigator with the Hospital were not protected by solicitor-client privilege.
North Bay General Hospital v. Ontario Nurses’ Association [2011] O.L.A.A. No. 506 is a clear lesson to Employers to pay particular attention to their retainers with external investigators. If an Employer wants to maintain a solicitor-client privilege with an external investigator it must ensure: (1) that it retains a lawyer and (2) that the lawyer’s role in the investigation is as a solicitor to provide legal advice as part of his or her investigative service in determining the facts of the matter. As a result, the Employer should receive the investigator’s report before determining whether discipline is merited in the matter being investigated. In any event, solicitor- client privilege will normally apply only to the investigator’s report and not to other pre-existing documents or other information connected with the underlying facts of the matter.