“I refuse to find that the investigation or its underlying records were created for the dominant purpose of litigation or are subject to solicitor-client privilege.”
So said the Court of King’s Bench of Alberta recently, finding an employer wrongfully assumed its workplace investigation was privileged.
And while a different judge might have reached a different decision, this “really illustrates the risk… because it’s so fact specific. Really, I think best practice is you should not assume that things are going to be privileged,” says Victoria Merritt, senior associate in the employment and labour group at Dentons in Vancouver.
