JEFFREY
PERCIVAL
With the coming into force of
Bill 168 in June, 2010, Ontario
workplaces are now required to
implement formal policies to deal
with violence and harassment.
As part of these requirements,
employers must also take active
steps to investigate allegations of
harassment or violence.
Often, when a complainant
approaches an employer to assert a
claim of harassment by another
employee, management decides to
retain outside legal counsel to
undertake a fact-finding investigation. Once this is completed, outside legal counsel prepares a report
for the employer to consider appropriate consequences. Recently, an
Ontario arbitrator considered
whether a fact-finding investigation undertaken by a lawyer was
automatically privileged because it
was prepared by legal counsel.
In North Bay General Hospital
v. Ontario Nurses’ Association,
2001 CanLII 68580, the employer
hospital retained an outside lawyer
to investigate an employee complaint of harassment and bullying.
The harassing employee was
demoted after the outside lawyer
discovered facts to ground the
complaint. When the employee
grieved the discipline, her union
requested a copy of the investigation report provided to the
employer. The hospital refused on
the grounds the report was solicitor-client privileged.
The matter proceeded to arbitration, where arbitrator Jasbir
Parmar considered whether the
fact that the investigator was a lawyer was sufficient to create a solicitor-client privilege for the investigation report itself. She noted that
the lawyer retained by the hospital
was specifically retained as an
“independent investigator” whose
role was to conduct an investigation, consider the allegations set
out in the complaint and find out
what actually transpired.
Given the nature of the law-
yer’s retainer, the arbitrator
refused to distinguish him from a
non-lawyer investigator. Parmar
added that since the lawyer was
retained to investigate events and
make findings of fact, she saw no
reason “to attach solicitor and
client privilege to a relationship
which is not that of a solicitor-
client, just because one of the par-
ties happens to be a lawyer.”
The hospital also tried to assert
that the lawyer’s investigation
report was not relevant and should
not be producible. The hospital’s
argument was undercut by the fact
that it referenced the report as the
basis for the imposed disciplinary
measures. As well, since the union
had alleged the disciplinary meas-
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ures were motivated by the grievor’s
past union involvement, the arbitrator concluded that the union
was entitled to all documents relevant to the hospital’s actions
toward the grievor, including the
investigation report and all communications between the investigating lawyer and the hospital.
In light of this recent decision,
how best can employer counsel
help clients protect sensitive investigation documents from automatic production to the parties?
First, although there is unsettled jurisprudence on point, if the
employer elects to have outside
counsel investigate the complaint
with a view to that counsel also
providing legal advice on appropriate post-investigation measures, the outside counsel should
be retained specifically for the
purpose of both investigating the
facts and providing legal advice.
The outside lawyer should issue a
formal retainer letter to the employer
that sets out that the investigation is
being undertaken to get the facts
necessary to provide legal advice to
the employer.
Second, if the employer elects
to have the same outside counsel
investigate and provide legal
advice based on the investigation,
the employer should ensure they
do not attempt to influence the
conduct of the investigation itself
through e-mails, phone calls and
so on. In fact, prudence suggests
any communications between the
employer and the retained inves-
tigating counsel demonstrate the
company’s recognition of the
need to avoid any appearance of
interference in a fair and impar-
tial investigation.
Jeffrey Percival is a member of the
labour and employment and com-
mercial litigation practices at Pal-
lett Valo in Mississauga.
Amendments did not have predicted impact
It has been just under two
years since amendments to the
Occupational Health and Safety
Act took effect, establishing an
obligation on most employers in
Ontario in regard to workplace
violence and harassment.
Employers are now required to:
n;conduct workplace violence risk
assessments;
n;establish violence and harass-
ment policies, and programs to
implement those policies;
n;provide information to workers
in regard to workplace violence
and harassment;
n;take reasonable precautions to
protect workers from workplace
violence related to domestic vio-
lence; and
n;allow employees to make and be
obligated to respond to workplace
violence related work refusals.
These amendments were anticipated to have a dramatic impact on
the community of employers and
the role played by the Ministry of
Labour (MOL). Two years later, it is
clear that the MOL is ensuring
compliance with the amendments
by way of inspector orders. In addition, the amendments have changed
how employers may approach
CHRISTINE
ASHTON
employee discipline and termination
in regard to workplace violence.
In contrast, the amendments
have not provided new grounds on
which employees can bring claims
or pursue grievances in relation to
workplace harassment, beyond in
relation to the establishment and
implementation of harassment
policies and programs.
Prior to these amendments, the
MOL had utilized the OHSA’s general duty sections as the basis for
mandating that employers take
steps to prevent and respond to
workplace violence. Employers
had until June 15, 2010 to come
into compliance with the OHSA
amendments. By March 31, 2011,
MOL inspectors had issued at least
1,100 orders under the workplace
violence and harassment sections.
Further, they had investigated
more than 400 complaints of
workplace violence and more than
1,000 complaints of harassment.
To date there are no reports of
the MOL laying charges for violations of the workplace violence and
harassment sections. This should
be of no surprise, as the amendments placed relatively minimal
obligations on employers, at least
in regard to workplace harassment.
The limited workplace harass-
ment-related obligations were
recently discussed by Vice-Chair
Brian McLean in Conforti v. Inves-
tia Financial Services Inc., 2011
CanLII 60897 (ON LRB). McLean
confirmed the OHSA provides no
duties or obligations with respect to
workplace harassment beyond
requiring employers to create a
policy and program to address it,
and provide employees with infor-
mation and instruction on the
policy and program. The amend-
ments did not create an obliga-
tion to conduct a workplace
harassment risk assessment. In
addition, they did not broaden
the general duty sections to
include taking precautions to
prevent workplace harassment.
Further, the amendments did
not broaden the work refusal
sections to provide that workers
can refuse work that is believed
to be unsafe because of harass-
ment.
Christine Ashton is an associate
with Wilson Vukelich LLP. Her
practice focuses on labour and
employment law, tax litigation,
and other related litigation.
