The Boundaries of Privilege in Workplace Investigations: Lessons from Recent Jurisprudence

Introduction

The intersection of workplace investigations and legal privilege has become increasingly complex in contemporary employment law. As organizations face mounting pressure to conduct thorough workplace investigations, the question of which investigative materials remain protected from disclosure under legal privilege has taken centre stage. A recent Alberta Court of King's Bench decision provides crucial guidance on this nuanced area of law.

The Evolution of Investigative Privilege

The view that investigations conducted by third parties automatically inherit some form of legal privilege has been significantly refined by modern jurisprudence. Courts employ a more nuanced analysis, examining the fundamental purpose of the investigation and its operational context. This evolving framework requires legal practitioners and human resources (HR) professionals to carefully consider the structure and objectives of workplace investigations from their inception.

Key Principles Emerging from Recent Case Law

The Alberta Court of King's Bench's decision in Prosser v. Industrial Alliance Insurance (2024 ABKB 87) illustrates several critical principles regarding privilege in workplace investigations:

1. Operational vs. Legal Purposes

The Court distinguished between investigations conducted for operational objectives and those undertaken primarily for legal purposes. When an investigation serves multiple purposes, courts will scrutinize its dominant purpose to determine whether privilege applies.

2. Policy Framework Impact

Organizational policies can significantly influence privilege determinations. Where investigations are mandated by internal policies — particularly those acknowledging potential legal disclosure requirements — courts may be less inclined to extend privilege protection.

3. Strategic Considerations in Claiming Privilege

A decision to rely on investigative findings in legal proceedings may constitute or result in a waiver of privilege, even if privilege might have otherwise applied. This creates a strategic tension between defending employment decisions and maintaining confidentiality.

4. Privilege is Document-Specific

Privilege must be assessed on a record-by-record basis to determine the dominant purpose behind the creation of each record. For instance, the final report prepared by an investigator may be privileged, but a court may reach a different finding with respect to the underlying records and notes created during the course of the investigation.

Best Practices for Preserving Privilege

HR professionals seeking advice and legal practitioners advising on workplace investigations should consider the following strategies:

• Clearly delineate between fact-finding activities and legal advisory work

• Document the primary purpose of the investigation at its outset

• Structure the investigation and communications during the investigation to separate privileged and non-privileged components

• Consider the implications of workplace policies, particularly any statements regarding obligations or potential for disclosure on privilege claims

• Evaluate the strategic value of maintaining privilege versus utilizing investigative findings in legal proceedings

Practical Implications

Organizations must navigate a complex landscape when structuring workplace investigations. The mere involvement of legal counsel to consult on workplace investigations or conduct a workplace investigation does not guarantee privilege protection. Instead, the investigation's purpose, structure, and subsequent use of findings all factor into privilege determination.

Conclusion

The evolving jurisprudence on investigative privilege demands a more sophisticated approach to workplace investigations. HR and legal practitioners must balance the operational necessity of investigations with the strategic value of maintaining privilege. As courts continue to refine this area of law, organizations would be well-served to adopt a more nuanced approach to investigation design and execution.