AM v. Kellock, 2017 HRTO 1327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

AM

Applicant

-and-

Neil Kellock

Respondent

-and-

Windermere Manor Ltd. and University of Western Ontario

Affected Parties

INTERIM DECISION

Adjudicator: Bruce Best Date: October 6, 2017 Citation: 2017 HRTO 1327 Indexed as: AM v. Kellock

WRITTEN SUBMISSIONS

AM, Applicant

Megan Evans Maxwell, Counsel

Windermere Manor Ltd. and University of Western Ontario, Affected Parties

Frank Angeletti, Counsel

1This Interim Decision addresses the applicant’s Request for production of an investigative report prepared on behalf of the University of Western Ontario (“the University”) pursuant to its Non-Discrimination / Harassment Policy (“the Policy”) arising out of the incidents that underlie the Application.

2The affected parties, Windermere Manor Ltd. and the University, were respondents to the Application when filed in July 2015. Following a mediation in March 2016, the Application was closed against the affected parties. The Application has since been proceeding against the individual respondent alone.

3In September 2014, the University indirectly learned of certain allegations of sexual harassment by the individual respondent against the applicant. It retained an external investigator, who conducted an investigation, which included interviews of the applicant and individual respondent, and prepared an investigation report outlining his findings. The University listed the investigation report as an important document in its Response. It did not indicate that it was claiming any privilege with respect to the document. It also listed the investigator, John McNair, as a potential witness.

4The investigator was apparently retained under paragraph 3.04.b of the Policy, which provides that the University’s Associate Vice President, Human Resources (“AVP-HR”) may

. . . appoint an internal or external investigator, to prepare a fact finding report in which the investigator shall review the complaint and determine whether discrimination and/or harassment has been established. In appointing an investigator, the AVP-HR is responsible for the ensuring [sic] that the investigator has relevant experience in such investigations and does not have a conflict of interest in the matter under review. The fact finding report is provided to AVP-HR.

5The University’s Response also provided detail respecting the investigator’s conclusions, including excerpts from the investigation report itself. The University also indicated that the applicant had been advised, through her counsel at the time, of the conclusions in the investigative report after it was completed in December 2014.

6In August 2017, the applicant contacted the University seeking a copy of the investigative report. The University refused to do so, on the basis that they were no longer involved in the Application.

7In September 2017, the applicant filed a Request for production of the investigation report with the Tribunal. The affected parties now oppose the Request on the basis that the document is privileged.

8In its Response to the Application filed in August 2015, the University stated that it had

. . . retained an external investigator, John McNair (“McNair”), to investigate the Applicant’s complaint pursuant to Western’s Non Discrimination/ Harassment Policy.

9In its Response to the Request for production filed in October 2017, the University now states that it had

. . . retained lawyer John McNair to investigate the Applicant’s complaint of sexual harassment and provide a legal opinion on whether Western’s Non-Discrimination/Harassment Policy was violated.

10This is the first indication that the investigator was a lawyer, and the first time the University is claiming that the investigator had been retained to provide a legal opinion. The University refuses to disclose the investigation report on the basis of solicitor client privilege and/or litigation privilege.

Analysis

11The Tribunal has the power to order a third party to produce any document, under Rule 1.7.p of the Tribunal’s Rules of procedure. That Rule states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

p. require a party or other person to produce any document, information or thing . . .

12The only question is whether the investigation report is protected by privilege. The issue of privilege such as in this case was addressed by the Supreme Court in Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39 (“Blank”). Fish J., at paras. 6-7, distinguished between “litigation privilege” when referring to “information and materials gathered or created in the litigation context”, and “solicitor client privilege” or “legal advice privilege”, which is “confidential communication between lawyers and their clients”. As the respondent has raised both, I will consider each in turn.

Litigation Privilege

13As noted in Blank at paras 26-28, litigation privilege and solicitor client privilege are distinct concepts. Litigation privilege is broader in terms of what communication or information it covers, though it is limited in time. In particular, whereas solicitor client privilege continues indefinitely, litigation privilege ends once the underlying litigation is over.

14Blank does note that litigation privilege can continue to apply in a case where there were ongoing related proceedings, even if the specific litigation for between the original parties is over. Quoting R.J. Sharpe (now Sharpe J.A.), Fish J. stated in Blank at para 40

As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate” (Sharpe, at p. 165).

15However, where, as in the present case, the party invoking privilege is no longer involved in any litigation relevant to the document in question, the purpose of the litigation privilege no longer exists. As Windermere and the University are no longer involved in the Application, their litigation privilege with respect to the investigation report has expired.

Solicitor Client Privilege

16As noted above, unlike litigation privilege, solicitor client privilege does not have a time limit. To the extent the investigation report contained a legal opinion, it would be protected by solicitor client privilege.

17However, under the Policy the purpose of the appointment of an investigator is to prepare a “fact finding report”, not a legal opinion. The summary and the excerpts from the investigative report included in the University’s Response also indicate that the purpose and content of the investigation report was not to give a legal opinion, but rather to investigate the facts.

18The fact that the investigation was conducted by a lawyer does not mean the report is therefore subject to solicitor client privilege. As noted in Blank, solicitor client privilege is “legal advice privilege”. There is no indication that the investigator was acting in the capacity of legal counsel, nor that the investigation report contains any legal advice, and as such there is no basis to find it is protected by solicitor client privilege.

19I find that the investigation report should be produced. However, if there are portions of the report that do in fact contain legal advice, they may be redacted from the report.

20Though both Winderemere Manor Ltd. and the University were named in the applicant’s Request for production, the investigation report was conducted by the University, not Windermere, and as such it is only necessary to make the order for production with respect to the University.

21The hearing in this matter is scheduled for Wednesday, October 11, 2017, and as such the report should be provided to the applicant as soon as possible.

Order

22The University shall provide a copy of the December 5, 2014 investigation report to the Applicant by Tuesday, October 10, 2017.

23The investigation report may be redacted to remove any legal advice.