Howard v. London(City), 2015 ONSC 156

COURT FILES NO.: CV-12-468533

REASONS RELEASED: 20150109

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CINDY HOWARD

Plaintiff

• and-

THE CORPORATION OF THE CITY OF LONDON

Defendant

APPEARANCES:

Niklas Holmberg Fax: 416-862-7661

-for Plaintiff (moving party)

Casey Dockendorff Fax: 519-433-4453

-for Defendant

BEFORE: Master D. E. SHORT

HEARD: August 11, 2014

REASONS FOR DECISION

I. The Problem

[1] This is an action for wrongful dismissal. The Plaintiff, Cindy Howard, was terminated from her position with the Defendant, the City of London, after an internal investigation (the “Investigation”). This motion is for production of all documentation related to the Investigation undertaken by the investigator, John McNair, including the Investigation Report over which the City of London claims privilege.

[2] As well, an Order was sought directing the Defendant to provide a detailed Schedule “B” for its Affidavit of Documents. I understand that the City has agreed to provide a more particularized Schedule “B” and as a consequence I am not addressing that concern in these reasons.

II. Relevant Facts

[3] The Plaintiff asserts that the Investigation is of central importance to these proceedings. The facts relevant to this motion are almost entirely contained in the exchanged Pleadings. As I consequence I intend to excerpt relevant portions of the Statement of Claim, filed on November 30, 2012 in describing the factual matrix involved in this motion.

[4] Until June 26, 2012, Ms. Howard was the Director, Social & Community Support Services for the City. She was also assigned additional duties for the Dearness Home, a City-owned nursing home.

[5] On or about June 26, 2012, the City terminated Ms. Howard from both positions in a letter from the Acting City Manager, Tim Dobbie, The plaintiff alleges the termination was “without cause and without notice”, while the City asserts that the termination was “for cause”.

[6] The Plaintiff was terminated following the Investigation conducted by a London area lawyer, John McNair, into the death of Norman Stasnya, a resident of the Dearness Home.

III. The Death of a Resident

[7] On or about March 2, 2012, while Ms. Howard was away on holidays, Norman Stasnya, an 81-year-old resident of the Dearness Home, packed his clothes in a bag and left the Home after sundown. In an attempt to cross Wellington Road, he was struck by a vehicle and succumbed to his injuries. Mr. Stasnya’s death received widespread news coverage in the London area.

[8] Earlier that day, Mr. Stasnya had been transferred from a secure ward to one that was unlocked. The plaintiff asserts Ms. Howard had no role in, and was not informed of, Mr. Stasnya’s transfer: “Medical decisions concerning residents were not one of the responsibilities delegated to her”.

[9] Following the fatality, Ms. Howard commenced an internal investigation involving interviews with staff at the Dearness Home. Ms. Howard was, however, ordered to end her investigation on or about March 5, 2012.

IV. Mr. McNair’s Investigation

[10] The Plaintiff’s Statement of Claim outlines her understanding of Mr. McNair’s role(with my emphasis):

52. On March 23, 2012, eighteen days after she ordered Ms. Howard to stop investigating the circumstances of Mr. Stasnya’s death, the City’s Chief of Human Resources, Veronica McAlea-Major, told Ms. Howard that the City had hired John McNair, a lawyer at McKenzie Lake, to investigate the circumstance of Ms. Stasnya’s death. Ms. Howard was advised that Mr. McNair was retained to conduct an investigation for “Human Resources” purposes. Ms. McAlea-Major specifically advised Ms. Howard that she should not conduct any interviews with City staff. As a result, Ms. Howard did not conduct any further interviews and expected that Mr. McNair’s findings would be provided to the MOHLTC [Ministry of Health and Long Term Care].

[11] An Affidavit was filed by the City on the motion sworn by Mr. Frank Angeletti, who is a partner with the law firm representing the City in this litigation. He deposes that as a result of this incident, he was retained “to provide the City with legal advice in relation to employee matters.” His affidavit continues:

4. As part of my legal advice, I advised the City that there would almost certainly be litigation in relation to this incident. I recommended that they retain a lawyer to conduct an independent investigation in relation to the events leading up to the incident of March 2, 2012 as well as events following the incident. The recommendation was specifically made in contemplation of litigation both as it relates to a potential law suit from the deceased's family, as well as potential litigation that may ensue if any City employees were implicated in any wrongdoing in relation to the incident. [my emphasis throughout]

[12] The affidavit of the counsel retained by the City to act for it continues:

5. I recommended John McNair, a lawyer with McKenzie Lake Lawyers in London, Ontario, to conduct the said review of the incident and its surrounding circumstances. Mr. McNair was recommended so that the City could claim solicitor client privilege over his records and advice.

[13] The issue before me is thus whether or not that asserted “solicitor client privilege” can be asserted so as to prevent access by the plaintiff to any of that documentation; particularly where the defendant acknowledges in its factum that:

“As a result of certain findings of fact and opinions made by Mr. McNair, the Plaintiff s employment with the City was terminated for just cause.”

[14] Matters relating to Mr. McNair’s retainer and the Investigation are alleged in detail in a number of paragraphs of the Statement of Claim. I have added my emphasis to portions of these extracts to assist in focusing on some of the salient portions:

78. Ms. Howard had been interviewed by Mr. McNair on three occasions subsequent to March 23, 2012. At the first meeting with Mr. McNair, with Ms. Hagan present, Ms. Howard asked Mr. McNair and Ms. Hagan (who are both lawyers) what legal rights she had when meeting with Mr. McNair. They both told her that they did not know what legal rights Ms. Howard had. Ms. Howard asked Ms. Hagan, as a member of the Human Resources Department, to get back to her on this point. Ms. Hagan never did so. However, at her second meeting with Mr. McNair, he advised Ms. Howard that his investigation was not about her or her actions.

79. Ms. McNair made a number of requests for information from Ms. Howard. At one point, Mr. McNair requested confidential health records of a Dearness Home patient from Ms. Howard. Ms. Howard called the City Solicitor, Mr. Barber for advice as to whether she could provide confidential records to Mr. McNair. Mr. Barber told Ms. Howard that he was not involved with Mr. McNair, that he did not support the approach involving Mr. McNair and that he had advised Mr. Dobbie that he could not provide any assistance with Mr. McNair’s investigation. Mr. Dobbie later called Ms. Howard and told her to provide Mr. McNair the requested confidential health records. Mr. Dobbie also informed Ms. Howard that she should not be concerned about the investigation being conducted by Mr. McNair and that the City’s management and Council held her in high regard.

[15] The plaintiff’s own affidavit sworn July 21, 2014 and filed in support of this motion shortly thereafter, testifies to events that followed:

20. Prior to our third meeting, Mr. McNair phoned me on or about May 30, 2012 and said that he needed another interview.

21. On or about May 30, 2012, I asked Mr. McNair if I should have a lawyer present during the meeting and he said that I was not allowed to have a lawyer present during the meeting.

22. On May 31, 2012, I brought with me all of the requested documents. I told Mr. McNair that all of these documents were my originals and he asked to keep them and that he would return them once his investigation was complete.

23. I cooperated with Mr. McNair's investigation in every way that I could. At no time did I understand that I could be terminated based upon Mr. McNair's Investigation or any conclusions reached by Mr. McNair.

24. On the weekend of June 1, 2012, I called Mr. Dobbie because I was concerned that I had not heard from Mr. McNair. I asked Mr. Dobbie if I would have the opportunity to review Mr. McNair's report and to respond if necessary. Mr. Dobbie told me that I would have such an opportunity.

25. I was never provided with the results of Mr. McNair's Investigation.

[16] No evidence was placed before me by the City disputing this sworn evidence of the circumstances surrounding the Investigation.

[17] The Statement of Claim further asserts:

82. On the weekend of June 1-2, 2012, Ms. Howard called Mr. Dobbie as she was concerned that she had not heard from Mr. McNair. Ms. Howard asked if she could have the opportunity to review Mr. McNair’s report and to respond if necessary. Mr. Dobbie agreed that Ms. Howard would have such an opportunity. Mr. Dobbie also stated, once again, that he was not concerned about Ms. Howard’s continued employment. Mr. Dobbie also stated that Mr. McNair had told him that Ms. Howard had been co-operative during Mr. McNair’s investigation and had provided all of the materials that he required of her.

83. On or about June 26, 2012, in a meeting with Mr. Dobbie and Ms. Foto, only three weeks after Mr. Dobbie’s assurances described above, Ms. Howard was told that she had four to five days to resign, and if she did not resign, she would be terminated. No reasons were provided to her for the City’s ultimatum. However, Mr. Dobbie and Ms. Foto suggested to Ms. Howard in the meeting that she not resign and suggested that she hire a lawyer. At that meeting, Ms. Howard was given the Termination Letter.

V. Process Leading to Letter of Engagement

[18] In his affidavit filed on this motion, Mr. Dobbie deposes that as Interim City Manager, he was responsible for, inter alia, exercising all powers and performing the functions of City Manager “as well as project manager, coordination, providing day to day operational direction and decisions, reporting to various committees, and reporting to Council.” His affidavit continues:

6. On the advice of the City's external legal counsel, Mr. Frank Angeletti, and given the risk of potential litigation with respect to the incident, I retained the services of Mr. John McNair, a lawyer with McKenzie Lake Lawyers in London, Ontario, to conduct an investigation regarding the incident and to provide legal advice, recommendations and opinions in relation to the incident. The facts that Mr. McNair gathered as part of his investigation were intended to form the basis upon which Mr. McNair would provide his legal advice and recommendations. [my emphasis]

[19] In the light of these expressed clear expectations of legal advice being provided by the investigator it is important to examine the terms of the engagement. These are set out in the next paragraph of the affidavit:

7. Mr. McNair was retained in accordance with the following terms of reference as set out in my letter to him of April 3, 2012:

This will confirm that we have requested you to act for the Corporation of the City of London (the "City") with respect to this matter in accordance with the terms of this letter. The scope of your retainer and terms of reference for your external investigation are as follows:

1. You will conduct an independent external investigation and will prepare a report for the Interim City Manager of the City and submit your report to the Interim City Manager.

2. Your report will contain findings of fact and independent privileged recommendations, opinions and advice.

3. The terms of reference for the external investigation will be as follows:

a. Whether the policies, procedures, and actions of the City in relation to the administration of the Dearness Home conform with the applicable regulatory standards as they relate to the events leading up to the critical incident;

b. Whether the procedures, policies and measures taken by the City in relation to quality of care and organizational effectiveness as they relate to the Dearness Home establish due diligence in relation to the events leading up to the critical incident;

c. Whether oversight by the City Council through its Council Committees, Committee of Management and appointed officers and employees conforms to the applicable regulatory standards and meets the test of due diligence in relation to events leading up to the critical incident.

d. Whether the City's procedures' for investigating critical incidents conform to the applicable regulatory standards.

e. Whether the City, its employees and its representatives complied with applicable policies, procedures and statutory standards from an administrative, operational, human resource and quality of care perspective in relation to the events leading to the critical incident. [my emphasis]

[20] The document does not appear to ask for general legal advice and appears to focus on whether or not the City failed in the performance of any of its responsibilities. Mr Doddie deposes as to the circumstances leading to employment of McNair:

8. I received legal advice from the City's external legal counsel, Mr. Frank Angeletti, with respect to both retaining Mr. McNair and also in relation to his retainer letter. Specifically, Mr. Angeletti provided advice in this respect to ensure that any documents, records, reports, etc. created by Mr. McNair would be privileged and not subject to disclosure.

9. Mr. McNair was also specifically retained in his capacity as a lawyer because in my view, the incident in question and any events leading up to and subsequent to the incident would almost certainly result in litigation.

10. Mr. McNair did, in fact, conduct an investigation and did produce a report to the City in accordance with the terms of his retainer letter. The introductory comments of Mr. McNair's report contain an overview of the scope of his retainer and states:

We were retained on behalf of the Corporation by the interim city manager on April 3rd, 2012 to conduct an independent external investigation of the critical incident on March 2nd, 2012 and prepare a confidential report containing findings of fact and legal advice. We were asked to address the following broad areas in the course of the said investigation:

a) whether the policies, procedures and actions of the Corporation in relation to the administration of Dearness conformed with the applicable regulatory standards and met the standard of diligence in relation to the critical incident;

b) whether the Corporation's procedures, policies and actions in relation to quality of care and organizational effectiveness conformed with best practices and established due diligence in relation to the critical incident;

c) whether the Corporation's procedures for investigating the critical incident conformed to applicable regulatory standards; and

d) whether the Corporation's employees complied with applicable policies, procedures and regulatory standards both before and after the critical incident.

[21] Specifically Mr Doddie states in his affidavit: “Mr. McNair's report included findings of fact and legal advice and recommendations based on those findings of fact.” What is not stated is whether the advice related to matters concerning the plaintiff’s employment or instead addressed potential liability to the family of the deceased.

VI. Plaintiff’s Evidence

[22] The plaintiff’s motion record contained some 243 pages, including a number of emails that were circulated regarding the proposal for an investigation. I have placed my emphasis on the extracts that follow from a number of the emails produced as exhibits to the plaintiff’s affidavit.

[23] One exhibit of particular interest to me was exhibit “E” to the affidavit of Ms. Howard, which appends, at pages 93 to 105 of the record an email chain commencing on Thursday, March 8 at 9 o’clock at 9:02 PM, with the ultimate entry being an email dated Tuesday, March 13, 2012 at 12:11 PM sent to Mr. Dobbie from Mr. Jim Barber [the city solicitor]. Cindy Howard was one of the four people who were copied with this communication. The subject was stated to be “RE: Dearness – Strictly Privileged and Confidential – Investigation and Reporting Requirements”. The substance of the email began:

“At the present time, the following investigations are occurring or have occurred with respect to due diligence and aspects of the critical incident at the Dearness Home (human resources, operational, administrative, which could include an investigation of the role of City Council and the Committee of Management for the Dearness Home:

1. Police Investigation

2. Ministry of Health Investigation.

3. Coroner’s Investigation.

4. Management Investigation (Dearness Management & Executive Director of Community Services)

5. Human Resources Investigation.

As well, various reviews of the Corporate management structure and operation which could prevent potentially relate to Dearness and City Council and Committee of Management oversight were undertaken or could be undertaken which could have a bearing upon the question of due diligence and civil liability:…”

[24] The email to the Acting City Manager continued for two pages of single spaced text and then concluded as follows:

Based upon your recommendation to undertake a further investigation based upon Mr. Angeletti's advice to you which Investigation could include the role of City Council and the Committee of Management (whose roles could be in issue), I am prepared to seek instructions from City Council to retain an independent legal counsel (such as Mr. McNair) on your recommendation to provide advice and an independent privileged legal opinion concerning:

1., Whether the policies, procedures, and actions of the city in relation to the administration of the dearness home conform with the applicable regulatory standards as they relate to the events leading up to the critical incident;

2. Whether the procedures, policies and measures taken to date by the city in relation to the quality of care and organizational effectiveness as they relate to the dearness home and establish due diligence in relation to the events leading up to the critical incident;

3. Whether oversight by the City Council, through its counsel, committees, committee of management and appointed officers and employees conforms to the applicable regulatory standards and meets the test of due diligence in relation to events leading up to the critical incident. For

4. Whether the city’s procedures for investigating critical incidents conform to the applicable regulatory standards, and whether all necessary steps have been undertaken to date...~

As a matter of logistics, such instructions could be considered in closed session at the upcoming meeting of City Council after being considered at the special meeting on March 20th of the Finance and Administration Committee. Please let me know whether you wish me to seek instructions as proposed above.

I would be pleased to discuss this advice with you or Mr. Angeletti at your convenience.”

[25] This document gives no suggestion that it is intended to obtain legal advice with respect to potentially terminating any employees, let alone the plaintiff.

[26] In a March 8, 2012 email with a subject line “HR Investigation – Dearness Home Critical Incident” from Ross Fair to Veronica McAlea-Major and copying Ms. Howard, Tim Dobbie and Jim Barber, Mr. Fair states:

It is my understanding that you have retained an “outside investigator” to conduct an investigation of the incident. At our meeting it was agreed that the scope of this investigation would be limited to “HR matters.”

[27] On March 12, 2012, Tim Dobbie sent an email to the City Solicitor, Jim Barber, copying Ross Fair, Cindy Howard and Adriana Hagan with the subject line: “FW: Dearness – Strictly Privileged and Confidential – Investigation and Reporting Requirements”. In that email, Mr. Dobbie explained his decision to proceed with a due diligence investigation using an outside party to demonstrate to the community that something was being done:

The investigation that I am initiating, is an investigation that will be done by a third party investigator with no relationship to any of us which will show the London community that we are doing everything possible to handle this investigation appropriately.

[28] Frank Angeletti, the City of London’s external legal counsel, provided recommendations to the City on March 12, 2012 regarding both the scope of the investigation and the proposed investigator:

“...The Corporation of the City of London should conduct a full and complete investigation as part of its due diligence process of the critical incident.

2. The investigation should be conducted by an external investigator (preferably an individual with legal background) and the investigation should cover all aspects of the critical incident (human resources, operational, administrative). The Corporation of the City of London may wish to consider the services of John McNair, a lawyer with McKenzie Lake, to conduct the investigation as external investigator.

3. The external investigator should be retained through the offices of the City Solicitor to maintain solicitor client privilege if required...”

[29] The City’s Solicitor, Jim Barber, set out his concerns that Mr. McNair’s ultimate report might not be privileged in an email dated March 13, 2012 to Tim Dobbie and copying Ross Fair, Cindy Howard, Adriana Hagan and Joy Jackson:

To the extent that such investigation is undertaken on the request of an pursuant to the direction of the City Solicitor’ Office [sic], those reports may remain privileged if they are prepared in contemplation of litigation or for the purpose of providing legal advice. In the past, the City’s Solicitor’s office has retained external auditors, management consultants and other kinds of experts to review matters in contemplation of litigation for the purpose of preparing a confidential report or giving legal advice....

...From the standpoint of due diligence (as suggested by Mr. Angeletti) and to address potential liability issues in relation to civil litigation, there may be some value in having a legal opinion from an external legal counsel which addresses questions concerning due diligence but which is privileged. It may be desirable at the appropriate time to undertake a risk management review, quality of care committee review, external review by a professional health care consultant and/or external audit with respect to the decision-making procedures surrounding residents at the Dearness Home based on the critical incident. These latter kinds of investigations and reports would be of more assistance than an investigation by a lawyer in the writer’s view but would only be privileged in the circumstances set out above. The City may retain outside counsel in relation to any lawsuit arising from out of the incident in any event who will replicate the work Mr. Angeletti has suggested and for that reason I do not recommend the approach you are contemplating... [my emphasis throughout]

[30] Neither of the two affidavits filed by the city take issue with what the plaintiff asserts was told to her with respect to the nature of the investigation. It appears she was routinely copied with “Strictly Privileged and Confidential” emails prior to Mr. McNair’s being hired in early April and cooperated fully in his investigation.

VII. Anticipated Uses of the Report

[31] Some of the emails would seem to make it clear that the report was not expected to relate to any problems with particular employees.

[32] On March 22, 2012 Ross Fair sent an email to Tim Dobbie, Jim Barber and Veronica McAlea-Major, copying Cindy Howard in which the nature and purpose of the Investigation was explained:

At the meeting, we agreed that any Human Resources investigation would be low key and would be related to more deeply understanding events and providing coaching and mentoring to staff involved in the incident.

[33] Further in an email sent that day Mr. Dobbie wrote:

Jim [Barber] I know you doubt the need for an external review of the Dearness incident. I still would sleep easier at night if we did some form of external review. Ross, you mentioned that we might be able to bring someone in who had some experience in operating facilities like Dearness. Veronica, I don’t know what you have done with respect to your HR investigation. I am still hoping that there might be someone who could do this 3rd party investigation fairly quickly covering the HR issues and the general issues that are of interest to me.

I would repeat again what I said at the meeting on Friday, I think that Ross has done a very good job in handling the situation with his staff. My only interest is to be able to demonstrate to the community that when our staff managers are faced with an incident such as the one at Dearness, our staff managers handle the issue, make their report and then, we have a 3rd party investigation

[34] Ms. McAlea-Major replied in an email to Tim Dobbie, Ross Fair, Jim Barber and Adrianna Hagan also on March 22, 2012:

We have been discussing the matter with John McNair and he has agreed to conduct the investigation. He is in the process of finalizing the scope of the investigation and retainer. He will be working through Adriana to co-ordinate the interviews.

[35] On the following day, March 22, 2012, Ms. McAlea-Major circulated an email to confirm Mr. McNair’s role:

Hi everyone, just to confirm we will proceed with the investigation consistent with our policies and practices. At this stage it would be premature to determine outcomes such as coaching and mentoring as we will need to await the findings of the investigation prior to those decisions being made.

VIII. City Officials’ Reliance on the Investigation in Disclosures to the Media

[36] Facts related to City Official’s disclosures to the Media are alleged at paragraphs 89 to 91 of the Statement of Claim:

89. With respect to Mr. McNair’s investigation, his findings have been kept secret and have never been provided to the MOHLTC or to Ms. Howard. However, in reporting on Ms. Howard’s termination as “Dearness Home administrator”, on June 28, 2012, the London Free Press reported that: “a lawyer hired by the city later concluded that Howard impeded the investigation, but not to the same degree the ministry found.” Ms. Howard states that the lawyer referred to in the article is Mr. McNair and it is his “conclusions” that were repeated to the London Free Press.

90. As such, it appears that the City has released more information concerning Mr. McNair’s investigation to the media than it has provided to Ms. Howard. Ms. Howard has never seen any of Mr. McNair’s conclusions or those of any other investigation into her conduct.

91. Ms. Howard has been afforded no opportunity to respond to any of the allegations made against her by the MOHLTC, by Mr. McNair, or by the City.

[37] The decision to terminate Ms. Howard and the reliance on the McNair Investigation in making that decision has been chronicled in the Media. The first reference to Mr. McNair’s Investigation was made in the London Free Press on June 18, 2012 at 10:23 am in an article entitled “Boss impeded death probe”:

Only the acting city manager Tim Dobbie agreed to an interview and explained that soon after the death, he ordered a third-party investigation.

“We take this incident extremely seriously,” he said

Dobbie hopes to have a report done withing [sic] a few weeks and in the meantime won’t disclose who is doing the investigation or any aspects of what the city or the ministry has found.

[38] In an article published by the London Free Press on June 27, 2012 at 12:23 pm entitled “Dearness problems probed” the following revelations are made regarding the Investigation:

But the city so far is keep [sic] under wraps what an outside lawyer found about the preventable death – John McNair was paid with tax dollars but produced nothing in writing and instead presented his findings to council behind closed doors.

While the city has so far kept McNair’s findings secret, London Mayor Joe Fontana defended council’s action.

[39] Later on June 28, 2012, an article entitled “Fontana Tackles Buyout Questions Surrounding Ousted Dearness Head” published by AM980 News linked the Investigation to Ms. Howard’s Termination. The then Mayor of London, Joe Fontana, was quoted as saying:

This is a very tragic incident. Our manager, Tim Dobbie, undertook a third party review, as well as the Ministry of Health – those reports came in, and she no longer works for the City and Dearness. Our preoccupation is to make sure we put the right organizational structures in place at Dearness to make sure events like this never happen again.

IX. Production of Documents: Applicable Rule

[40] Protection of a document from disclosure by virtue of privilege is the exception and requires adequate justification or the document is to be disclosed. Rule 30.02 provides:

30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

[41] The rule clearly provides for disclosure of the existence of a document. However, the contents may still be protected by a valid claim to privilege.

[42] I am satisfied that the investigation and the resulting report, are relevant to these proceedings. I base this determination, at least in part on counsel’s acknowledgment that the city’s decision to terminate Ms. Howard was based upon the Investigation.

X Relevant Caselaw

[43] This is a complicated area of the law, which has been addressed in a number of cases, many of which have some similarity to the facts in this case. In each case, the court is required to determine on which side of the production or privilege line the particular factual situation falls. I did not turn now to some cases per put forward by counsel, which I found to be of particular assistance.

[44] The first is General Accident Assurance Co. v. Chrusz ,1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321;180 D.L.R. (4th) 241;124 O.A.C. 356; 38 C.P.C. (4th) 203. This was a 1999 decision of Justices Carthy, Doherty and Rosenberg of the Ontario Court of Appeal. In that case, each Justice concurred in the result, but delivered separate reasons. In his reasons Justice Doherty observed:

95 The adjudication of claims to client-solicitor privilege must be fact sensitive in the sense that the determination must depend on the evidence adduced to support the claim and on the context in which the claim is made. A claim to client-solicitor privilege in the context of litigation is in fact a claim that an exception should be made to the most basic rule of evidence which dictates that all relevant evidence is admissible. It is incumbent on the party asserting the privilege to establish an evidentiary basis for it. Broad privilege claims which blanket many documents, some of which are described in the vaguest way, will often fail, not because the privilege has been strictly construed, but because the party asserting the privilege has failed to meet its burden: see Shaughnessy Golf & Country Club v. Drake International Inc. et al. (1986), 1986 CanLII 163 (BC CA), 26 D.L.R. (4th) 298 at 302-4 and 307-8, per Esson J.A. (B.C.C.A.).

[45] Later in his reasons he observes

121 Client-solicitor privilege is designed to facilitate the seeking and giving of legal advice. If a client authorizes a third party to direct a solicitor to act on behalf of the client, or if the client authorizes the third party to seek legal advice from the solicitor on behalf of the client, the third party is performing a function which is central to the client-solicitor relationship. In such circumstances, the third party should be seen as standing in the shoes of the client for the purpose of communications referable to those parts of the third party's retainer.

122 If the third party is authorized only to gather information from outside sources and pass it on to the solicitor so that the solicitor might advise the client, or if the third party is retained to act on legal instructions from the solicitor (presumably given after the client has instructed the solicitor), the third party's function is not essential to the maintenance or operation of the client-solicitor relationship and should not be protected.

123 In drawing this distinction, I return to the seminal case of Wheeler v. La Marchant, [(1881)17 Ch.D. 675] In distinguishing between representatives of a client or a solicitor whose communications attracted the privilege and those whose communications did not, Cotton L.J. referred to representatives employed by a client "to obtain the legal advice of the solicitor." A representative empowered by the client to obtain that advice stood in the same position as the client. A representative retained only to perform certain work for the client relating to the obtaining of legal advice did not assume the position of client for the purpose of client-solicitor privilege….

126 This functional approach to applying client-solicitor privilege to communications by a third party is sound from a policy perspective. It allows the client to use third parties to communicate with counsel for the purpose of seeking legal advice and giving legal instructions in confidence. It promotes the client's access to justice and does nothing to infringe the client's autonomy by opening her personal affairs to the scrutiny of others. Lastly, it does not impair the lawyer's ability to give his undivided loyalty to the client as demanded by the adversarial process. Where the client retains the authority to seek legal advice and give legal instructions, these policy considerations do not favour extending client-solicitor privilege to communications with those who perform services which are incidental to the seeking and obtaining of legal advice.

[46] The case, most nearly parallel to the matter before me which was argued by both counsel is the decision of the Manitoba Court of Appeal in Gower v. Tolko Manitoba Inc.,2001 MBCA 11;

[47] 2001 MBCA 11, 196 D.L.R. (4th) 716; [2001] 4 W.W.R. 622; 153 Man.R. (2d) 20; 7 C.C.E.L. (3d) 1; 2 C.P.C. (5th) 197.

[48] Gower was also a wrongful dismissal case where a report was commissioned by the employer prior to the termination. In that case the Court of Appeal held that a report prepared by a lawyer was protected from disclosure on the basis of legal advice privilege.

[49] Gower’s employer Tolko received a complaint that Gower had sexually harassed another employee. As a result, Tolko retained a British Columbia lawyer to investigate the complaint. There was a formal agreement which provided for the investigator to prepare a report stating findings of fact, and to provide legal advice based on those findings. The investigator interviewed Gower, the complainant, and other witnesses, then prepared a report. Following receipt of the report, Tolko fired Gower.

[50] Gower commenced an action for wrongful dismissal, and brought a motion to produce the investigator's report. A Master ordered production of much of the report, but on appeal to a motions judge it was held that the entire report was subject to legal advice privilege. That decision was upheld by the Court of Appeal.

[51] A representative of the employer instructed the investigator “to travel to The Pas to gather the facts, and based on those facts, make recommendations and provide advice in respect to the legal implications of any of those recommendations. Further, he requested that she examine the possibility of litigation including a wrongful dismissal action; a grievance under the complainant's collective agreement or a human rights complaint and advise Tolko how to act to avoid, if possible, litigation and as well as to advise if litigation did happen, what would be the probabilities of the success.” [My emphasis]

[52] The employer and the investigator executed a formal retainer agreement in this case which is reproduced in the decision of Justice Steel and upon which I have based the chart that is contained as an appendix to these reasons.

[53] Steel J.A. addresses the privilege issues to be considered in such a case (my emphasis throughout):

13 Legal advice or solicitor-client privilege is a well-established doctrine in the law. In Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860 and again, very recently, in R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, the Supreme Court of Canada adopted the following description of solicitor-client privilege by Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), at para. 2292:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.

14 The privilege extends to communications in whatever form they exist, but does not extend to disclosure of the underlying facts by those who communicated with the lawyer if they are otherwise discoverable and relevant: see Susan Hosiery Ltd. v. Minister of National Revenue, 1969 CanLII 1540 (CA EXC), [1969] 2 Ex.C.R. 27 at p. 34, and R. D. Manes and M. P. Silver, Solicitor-Client Privilege in Canadian Law (Toronto: Butterworths, 1993) at pp. 127-33. So, for example, while the report contains privileged communications from employees of Tolko, the plaintiff is free to speak to or call as witnesses any of these employees with respect to the events they described.

15 There are several rationales underlying the privilege. It promotes frank and full communications between solicitor and client where legal advice is being sought or given. By promoting and facilitating effective legal advice it thereby facilitates access to justice, and it affirms the efficacy of the adversarial process. (See General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 180 D.L.R. (4th) 241 (Ont. C.A.) per Doherty J.A., at paras. 91-94.)

16 It is important to distinguish solicitor-client privilege and litigation privilege. Besides the fact that the rationales underlying these two doctrines are different, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself:

... the right to protection for the confidence, commonly referred to as legal professional privilege, is not dependent on there being litigation in progress or even in contemplation at the time the communications take place ... .

[Re Director of Investigation and Research and Shell Canada Ltd. (1975), 1975 CanLII 2217 (FCA), 55 D.L.R. (3d) 713 at p. 723 per Thurlow J., as quoted in Descôteaux et al. v. Mierzwinski at p. 886]

17 The establishment of solicitor-client privilege with respect to a particular document is fact specific and, consequently, will vary from case to case. As the Supreme Court of Canada stated:

Whether or not the solicitor-client privilege attaches ... depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.

[R. v. Campbell, para. 50]

18 Thus, the onus is on the person seeking to claim the privilege to establish three factors in connection with any particular document:

1. that the document was the giving or obtaining of legal advice;

2. the presence of a solicitor and the presence of a client; and

3. the existence of the solicitor-client relationship.

[54] Justice Steel does address the nature of the assignment in evaluating the availability of an enforceable privilege claim:

22 Last, the communication between the client and the lawyer must take place within a solicitor-client relationship. When the solicitor deviates from his or her role as a solicitor, the communication to the client is no longer "legal advice." Of course, the question of whether the communication was for the purposes of obtaining legal advice is closely related to whether the solicitor was acting in a professional legal capacity as a solicitor.

23 In the case of Wilson v. Favelle (1994), 1994 CanLII 1152 (BC SC), 26 C.P.C. (3d) 273 (B.C.S.C.), the court considered whether a report prepared by a lawyer at the instance of government was subject to legal advice privilege. The lawyer was hired to conduct an investigation into a complaint of misconduct against an employee. The purpose of the report was to document the facts relating to the allegations and to provide advice regarding any violations of standards of conduct for public service employees. The court held that the report was not the subject of legal advice privilege based on the evidence adduced in the case that the lawyer was hired as an investigator and not as a solicitor to act on behalf of the government. The wording of the contract contradicted the affidavit of the client that the lawyer was hired to give legal advice as opposed to investigating breaches of code of conduct. She was asked to "provide advice" but the advice was to "any violations of standards of conduct for public service employees."

[55] The reasons of the Manitoba Court of Appeal conclude with these observations:

31 The plaintiff argues that the general rule in modern litigation is one of broad disclosure. Since disclosure is the norm, it should be limited only when absolutely necessary and, in this case, he should be entitled to examine and test the information that led to his dismissal.

32 The apparently contradictory policy objectives represented by the encouragement of broad disclosure in litigation and the protection of solicitor-client communications are aptly summarized in Justice Doherty's decision in General Accident Assurance Co. v. Chrusz at paras. 66-67:

These issues bring to the forefront two antithetical principles, both of which are accepted as fundamental to the civil litigation process. One principle, the right to full and timely discovery of the opposing party's case, rests on the premise that full access to all the facts on both sides of a lawsuit facilitates the early and just resolution of that suit. The other principle, the right of a party to maintain the confidentiality of client-solicitor communications, and sometimes communications involving third parties, rests on the equally fundamental tenet that the confidentiality of those communications is essential to the maintenance of a just and effective justice system. The tension between the two principles is described by Lamer C.J.C. in R. v. Gruenke (1991), 1991 CanLII 40 (SCC), 67 C.C.C. (3d) 289 at 305:

The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor-and-client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication.

In attempting to reconcile these principles, I do not start from the premise that one principle, access to all the facts, is a good thing in that it promotes the search for truth and that the other principle, confidentiality, is a necessary evil to be tolerated only in the clearest of situations. Both principles have a positive value to the community and individuals, and when viewed from a broad prospective, both serve the goal of ascertaining truth by means which are consistent with the important societal values of fairness, personal autonomy and access to justice.

33 More specifically, the plaintiff argued that the dominant purpose for the creation of the report was not to obtain legal advice, but rather, notwithstanding the retainer letter, merely to have Janzen conduct an investigation.

34 It is not helpful to use the phrase "dominant purpose" when discussing legal advice privilege. That phrase is commonly found in connection with litigation privilege. When communications are created for the dominant purpose of litigation, then they may be privileged even though it is a communication made between clients and third parties without the presence of a lawyer.

35 As I have already indicated, these two types of privileges are quite different, have different rationales and arise in different circumstances.

36 Legal advice privilege is not dependent upon there being litigation in progress or even in contemplation at the time the communication takes place. Nowhere in the definition of legal advice privilege is there any requirement that the communications between the lawyer and his/her client be for the dominant purpose of litigation. Rather, what must be present is the provision of legal advice as one of the purposes of the document, but that legal advice is not confined to a situation where litigation is contemplated.

37 In the situation at hand, it is clear from the evidence that Janzen was asked to investigate and perform a fact-finding function. If that is all she was asked to do then, regardless of the fact that she is a lawyer, she would not have been providing legal advice and would have been acting as an investigator, not as a lawyer. Consequently, legal advice privilege would not have been available.

38 However, there is strong evidence that she was asked to do more. The investigation to determine the veracity of the allegations made against the plaintiff was only one part of her tasks. It is clear that the client requested Janzen make recommendations based on the facts that she gathered and provided advice with respect to the legal implications of those recommendations. Thus, the fact gathering was inextricably linked to the second part of the tasks, the provision of legal advice.

39 The appropriate test is not whether the investigative function performed by Janzen could have been performed by a non-lawyer. It clearly could have, but as the motions judge held, relying on Wigmore on Evidence, 1999 supplement (New York: Aspen Law & Business, 1999) at para. 2296, and In Re Allen, 106 F.3d 582 (4th Cir. 1997) at para. 26:

The relevant question is not whether Allen was retained to conduct an investigation, but rather, whether this investigation was "related to the rendition of legal services."

40 The retainer letter is a strong piece of evidence that the investigation was related to the rendering of legal advice. However, the retainer letter would not be determinative if there was evidence that pointed to the opposite conclusion.

42 …It is true that just because a person is a lawyer this does not mean that any information obtained will be protected by legal advice privilege. It will be a question of fact in each case, whether the person received the information within the context of a solicitor-client relationship. I agree with the plaintiff that conducting the investigation under a sexual harassment policy is not an activity that is peculiarly within the province of a lawyer. However, conducting such an investigation in order to ascertain facts upon which to base a legal opinion to one's client is peculiarly within the province of a lawyer.

[56] I now turn to the decision of the Federal Court of Appeal in 2013 in Slansky v. Canada (Attorney General),2013 FCA 1992; 35 A.C.W.S. (3d) 350; 60 Admin. L.R. (5th) 211;2013 FCA 199, 449 N.R. 28; 364 D.L.R. (4th) 112. There, Evans J.A. delivered reasons with respect to a matter before the Canadian Judicial Council were a lawyer complained about the conduct of a judicial official at a trial over which he presided.

[57] A highly respected Canadian law professor, Martin Friedland was retained to investigate the allegations and the moving party sought access to his report over which privilege was claimed.

[58] In his reasons Justice Evans turned his consideration to “lawyers and investigations: the jurisprudence”. In part he observes:

80 Gower is the leading authority on legal advice privilege respecting a report by a lawyer who has been instructed by a client to investigate a complaint of improper conduct. The issue in Gower was whether the plaintiff in a wrongful dismissal action was entitled to the production of a report written by a lawyer at the request of the defendant, the plaintiff's employer.

81 The lawyer had been retained to conduct an investigation into a complaint against the plaintiff of sexual harassment "as counsel on behalf of the employer for the purpose of providing a fact finding report and giving legal advice based on the report" (para. 4). The Court held (at para. 12) that the entire report, including the section on findings of fact, was subject to legal advice privilege, on the ground that "the entire report forms an investigative report leading to legal advice".

82 As to what constitutes "legal advice" for the purpose of the privilege, the Court stated (at para. 19):

... legal advice is not confined to merely telling the client the state of the law. It includes advice as to what should be done in the relevant legal context. It must, as a necessity, include ascertaining or investigating the facts upon which the advice will be rendered. Courts have consistently recognized that investigation may be an important part of a lawyer's legal services to a client so long as they are connected to the provision of those legal services.

86 In an earlier case, Wilson v. Favelle (1994), 1994 CanLII 1152 (BC SC), 26 C.P.C. (3d) 273 BCSC(Wilson), the Master emphasized the importance of the scope of the role assigned to a lawyer in determining whether legal advice privilege applies. An outside lawyer had been retained by the British Columbia Ministry of Health to investigate a complaint of misconduct by the plaintiff, an employee of the Ministry. The plaintiff sought production of the lawyer's report, which the Province opposed on the ground that it was subject to solicitor-client privilege.

87 The contract between the lawyer and the Ministry stated that the lawyer was to investigate the allegations by interviewing the complainant. The lawyer was then to prepare a report for the Deputy Minister documenting the facts, and advise on any breaches of the standards of conduct applicable to public service employees and on any damage to either the Ministry's ability to perform its functions or the reputation of the Crown or its employees. The terms of the contract were subsequently characterized in an affidavit as including the provision of legal advice to the Deputy Minister.

88 The Master granted the motion for production on the ground that the terms of the lawyer's contract did not establish a solicitor-client relationship. He gave no weight to the affidavit's after-the-fact re-characterization of the instructions.

89 Unlike the situation in Gower and College of Physicians and Surgeons of B.C., Professor Friedland's letter of engagement did not expressly include the provision of legal advice to the Chairperson. Indeed, he was specifically instructed not to advise the Chairperson on the decision he should make regarding the complaint. However, Blood Tribe has somewhat modified the law as formulated in these cases in that a lawyer and client relationship will be established if the lawyer had been engaged to provide services in a legal context for which a lawyer's skills and knowledge are necessary, even if the services might not be regarded as the provision of legal advice in the ordinary sense, because, for example, the lawyer neither informs the client about their legal rights or duties, nor expressly advises on action to be taken by the client given the client's legal position.

90 Whether Professor Friedland was retained to give legal advice or otherwise to act as a lawyer depends on the answers to two questions. First, what was the scope of the mandate given to him by the CJC? Second, is that mandate properly characterized as "providing legal advice or otherwise acting as a lawyer"?

(iv) Professor Friedland's mandate

91 Counsel for Mr. Slansky says that the terms of the CJC's Policy form the basis of Professor Friedland's letter of engagement. They establish that, as counsel, his role was limited to investigating the complaint by gathering facts and clarifying the allegations, so as to assist the Chairperson in deciding how to proceed with the complaint.

92 Further, he argues, it is clear from Gower, College of Physicians and Surgeons of B.C, and Wilson that the reports of lawyers who are instructed to investigate the facts of a complaint are not subject to legal advice privilege, unless their mandate also includes the provision of legal advice.

93 Counsel submits that Professor Friedland's role was not to provide legal advice or other legal services, but rather was analogous to that of human rights investigators who investigate complaints of discrimination and report to the Commission on whether an adjudicative hearing is warranted. He says that these investigators have not generally been lawyers, and their reports are normally disclosed as a matter of fairness to complainants.

94 There might be much to be said for this view if the nature of Professor Friedland's mandate was to be determined only by reference to the CJC's Policy incorporated into the letter of engagement, without any consideration of context. However, while the retainer is important evidence of whether a solicitor-client relationship has been established, the terms of the retainer are not necessarily conclusive (Gower at para. 40), and must be construed in light of all the relevant circumstances.

95 The description of Professor Friedland's mandate in the letter of engagement was based on the CJC's Policy respecting the role of counsel. The parts of the Policy quoted in the letter state that the role of counsel in conducting further inquiries into a complaint is to "gather further information", "attempt to clarify the allegations" and "gather evidence which, if established, would support or refute those allegations". In addition, the Policy provides that"documentation may be collected and analyzed"(emphasis added) by counsel.

98 Inquiring into these allegations in order to assist the Chairperson in making a decision on whether to refer the complaint to a hearing panel called for an analysis of documents and tapes that required the skills and knowledge of a lawyer. And not just any lawyer, but one like Professor Friedland who had an extensive knowledge of criminal law and criminal trial process.

99 Thus, Professor Friedland examined 6,000 pages of trial transcript, and listened to tape recordings of parts of the trial, in order to clarify the allegation of misconduct by the Judge in the manner in which he managed a difficult trial. Sifting through this material to understand the dynamics of the trial, identifying exchanges involving the Judge that might constitute judicial misconduct and not just give rise to an appeal, and providing an analysis of these findings, all called for a lawyer's knowledge and skills. Similarly, Professor Friedland's analysis of the Judge's rulings in this case, as well as of his other reported decisions, for indications of bias, bad faith, or improper motives, was also uniquely within a lawyer's competence.

103 In my view, a lawyer's knowledge was required to make that distinction in this case. Professor Friedland's special legal expertise, as both a criminal lawyer and the author of a study of judicial discipline and judicial independence, made him particularly qualified for this role.

104 There are undoubtedly similarities between the role of non-lawyer human rights investigators and that of counsel appointed under paragraph 5.1(c). In my view, however, these are outweighed in the present case by the differences. Human rights investigations are typically heavy on fact and light on law, and can be capably undertaken by suitably trained persons, whether or not they are lawyers. In contrast, the investigation of Mr. Slansky's allegations inherently required factual and legal analysis peculiarly within a lawyer's expertise.

[59] The court concluded:

109 In summary, when Professor Friedland was engaged to conduct further inquiries into Mr. Slansky's allegations, and to submit a report on them to assist the Chairperson to discharge his legal duty to decide on how to proceed with the complaint, he was engaged in his professional capacity as a lawyer. In view of the complexity and nature of the complaint, any analysis of the data that would assist the Chairperson required the skills and knowledge of a lawyer. Hence, when the letter of engagement is read in the context of this complaint, it is my view that Professor Friedland was engaged to provide legal advice or otherwise to act as a lawyer. The report of his inquiries is therefore subject to legal advice privilege.

[60] In my view the components of Mr. McNair’s role were significantly different from those undertaken by Professor Friedland. The stated issues to be explored, as set out in his hiring document make little mention of advice being sought with respect to “legal” issues.

[61] In my view the components of Mr. McNair’s role were also significantly different from those undertaken in Gower. The stated issues to be explored, as set out in his hiring document make little mention of advice being sought with respect to “legal” issues. This is apparent from the following comparison of the two investigator’s roles as set out in the chart at Appendix “A” to these reasons.

[62] I am therefore holding that the Investigation is not protected in this case from production on the grounds of Solicitor - Client Privilege.

[63] However other possible privilege claims and alleged reasons why privilege did not apply were also raised and need to be briefly addressed.

XI. Is the Investigation, in any event Not Protected by Privilege as against plaintiff?

[64] Counsel for the plaintiff argues that the burden to prove that a document is privileged is upon the party claiming privilege. Evidence must be adduced to support the claim and to advise the court of the context in which the claim is made.

[65] Counsel for the Plaintiff further submits that the City has claimed privilege over documents contained in the Investigation file that cannot be privileged as against Ms. Howard. At the very least, notes made during Mr. McNair’s meetings with Ms. Howard cannot be privileged as against Ms. Howard. As Ms. Howard was the source of information in those notes, the questions asked of her and the answers given by her cannot be considered confidential from her. [Hart v Canada (Attorney General), 2012 ONSC 6067 at para. 21 ]

[66] In his book Solicitor-Client Privilege, (Markham:Lexis-Nexis,2014) Adam Dodek observes at section 4.118 that the assessment of whether a lawyer acting as investigator is acting in his capacity is context-specific and dependent on factors such as:

The terms of the mandate provided to the lawyer investigator;

The understanding of the parties;

The Nature of the actual investigation conducted by the lawyer-investigator (whether it is only a factual investigation or whether the lawyer provided legal advice as well; whether the lawyer is providing legal or policy advice); and

Whether the investigation could have been undertaken by a non-lawyer or specifically required some legal expertise.

[67] Counsel for the plaintiff argues as well that the conduct and manner in which an investigation is carried out is an important consideration in determining privilege. Evidence of conduct indicating privileged communication include stamping or marking documents as “Confidential” or “Solicitor-Client Privilege” and the provision of actual legal analysis and advice. As well, counsel argues that the in Mr. McNair’s correspondence with Ms. Howard, emails were not marked privileged.

[68] Based on the record before me, it would appear clear that at the outset Mr. McNair was not retained nor consulted in his capacity as a lawyer. It is not denied that what was made clear during internal discussions surrounding the retention of Mr. McNair was that his role was one of an independent third-party retained to investigate “HR matters” in order to demonstrate to the London community that the City was doing everything possible to handle the investigation appropriately. The results of Mr. McNair’s investigation were expected to allow for a deeper understanding of events and to allow for coaching and mentoring to staff involved in the incident.

[69] Simply because a lawyer who perhaps is familiar with automobile mechanics is asked to put that additional expertise to work in determining the cause of an engine failure would not, in my view, give rise to an entitlement to treat his report as protected by any form of solicitor-client privilege.

[70] When a lawyer is retained to investigate and report on facts he is not acting in his capacity as legal adviser. Even when asked to provide advice, unless that advice is legal advice, no privilege protects the investigation. [see Wilson v Favelle, [1994] BCJ No 1257 ]

[71] It appears to me that this was intended to be an independent review by an outside individual of the city’s operation of the subject seniors’ facility and in the totality of information involving an individual who had apparently been allowed to leave the facility.

[72] Applying the concept of Proportionality, it seems to me that on balance, the understanding and expectation of Ms. Howard was that this process was not to lead to the establishment of individual blame.

XII. Common Interest Concerns

[73] I have concluded on the basis of the foregoing that the report of the investigator ought to be made available to the plaintiff. I am satisfied that my conclusion is also supported by what the authors of the Sopinka and Letterman (3rd edition) address in examining the issues that can arise where more than one entity are participating in joint enterprises or have common interests [footnotes omitted]:

Joint or Common Interests

§14.50 Joint consultation with one solicitor by two or more parties for their mutual benefit poses a problem of relative confidentiality. As against others, the communication to the solicitor was intended to be confidential and thus is privileged. However, as between themselves, each party is expected to share in and be privy to all communications passing between either of them and their solicitor, and, accordingly, should any controversy or dispute subsequently arise between the parties, then, the essence of confidentiality being absent, either party may demand disclosure of the communication. “Moreover, a client cannot claim privilege as against third persons having a joint interest with him or her in the subject matter of the communications passing between the client and the solicitor.” ….

§14.51 As Major J. pointed out in Pritchard v. Ontario (Human Rights Commission) [ 2004 SCC 31, [2004] 1 S.C.R. 809; [2004] S.C.J. No. 16; 2004 SCC 31]:

[24.] The common interest exception originated in the context of parties sharing a common goal or seeking a common outcome, a "selfsame interest" as Lord Denning, MR, described it in Buttes Gas & Oil Co. v. Hammer (No.3), [1980] 3 All E.R. 475 (C.A.), at p. 483. It has since been narrowly expanded to cover those situations in which a fiduciary or like duty has been found to exist between the parties so as to create common interest. These include trustee-beneficiary relations, fiduciary aspects of Crown-aboriginal relations and certain types of contractual or agency relations."

[74] Justice Major, delivering the reasons of the Supreme Court in Pritchard also observed:

23 The common interest exception to solicitor-client privilege arose in the context of two parties jointly consulting one solicitor. See R. v. Dunbar (1982), 1982 CanLII 3324 (ON CA), 138 D.L.R. (3d) 221 (Ont. C.A.), per Martin J.A., at p. 245:

The authorities are clear that where two or more persons, each having an interest in some matter, jointly consult a solicitor, their confidential communications with the solicitor, although known to each other, are privileged against the outside world. However, as between themselves, each party is expected to share in and be privy to all communications passing between each of them and their solicitor. Consequently, should any controversy or dispute arise between them, the privilege is inapplicable, and either party may demand disclosure of the communication....

[75] In my view that is exactly the situation here and no privilege can be asserted against the plaintiff who was intimately involved in the conducting of the subject investigation.

[76] No contrary evidence was filed to challenge her sworn testimony to the effect that was repeatedly assured that she had nothing to be concerned about and was told by Mr McNair not only that she did not need a lawyer but that she could not have one in attendance. In such circumstances it would seem to me that the City is estopped from asserting a privilege interest in the Investigation against the plaintiff.

XIV. Was Investigation Conducted in Anticipation of Litigation with Ms. Howard

[77] Litigation privilege is contextual and unlike solicitor-client privilege, which protects a relationship, litigation privilege exists to protect the adversarial process. The test to be applied in assessing litigation privilege is therefore whether or not the material over which privilege is claimed is material prepared for the dominant purpose, and in contemplation, of the specific litigation at hand and not some other litigation. [see Whatman v Selley, [2000] OJ No 3155 at para. 11&15 ]

[78] Litigation privilege cannot protect the Investigation from production in these proceedings as there is no evidence that litigation of any kind was contemplated against Ms. Howard at the time Mr. McNair conducted his Investigation.

In S&K Processor Ltd v Campbell Ave. Herring Producers Ltd, (1983) 1983 CanLII 407 (BC SC), 45 BCLR 218 Justice McLachlin, the sitting on the British Columbia Supreme Court observed:

“6. Waiver of privilege is ordinarily established where the possessor of the privilege (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive the privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require….”

[79] In my view, the manner in which the investigation was conducted amounts to a requirement, on the basis of fairness to the plaintiff, to treat a waiver of privilege of any otherwise available privilege to have been made.

XV. Privacy Concerns

[80] The factum filed on behalf of the City contained a request that in the event the Court was prepared to grant the Plaintiff s Motion, any resulting Order ought to be subject to the condition that all materials ordered to be produced shall be redacted such that personal information, as defined in the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA") and the Personal Health Information Protection Act ("PHIPA"), is removed in order to ensure compliance with MFIPPA and PHIPA.

[81] I agree with the wisdom of such a request and make my order in this case subject to that condition.

XVI. Disposition

[82] The reasons set out above; the Plaintiff’s motion for an order that the defendant produce a copy of all documentation relating to the investigation undertaken by John McNair, including the investigation report is allowed, subject to the privacy protection described above.

[83] Both parties submitted cost outlines of the completion of the argument of the motion counsel for the plaintiff reported docketed time of a number of levels of involvement in experience totalling 80 hours and sought just under $20,000 on a partial indemnity scale. The City had about 45 hours and sought a more modest amount of approximately $8000. Again applying proportionality, I determined to fix the costs of this motion on an “all in” basis, payable by the City to the plaintiff in the total sum of $15,000.

[84] I thank all counsel for their skilled advocacy and assistance in addressing this matter.

Master D. E. Short

DS/ R. 77

January 9, 2015

GOWER

1. The Investigator will conduct an investigation as counsel on behalf of the Employer for the purpose of providing a fact finding report and giving legal advice based on the findings in the report.

2. The investigators notes, fact finding report and legal advice will be protected by solicitor/client privilege. The investigator will advise all witnesses, including the Complainant and the Respondent, that she is conducting this investigation as legal counsel for the Employer.

3. All information supplied to the Investigator by the Individuals whom the Investigator interviews, including the Complainant and the Respondent, will be supplied in confidence and will be treated by the Investigator as strictly confidential. The information will be revealed only on a "need to know" basis in order to ensure that the investigation is fair.

4. The Investigator will meet with and interview the Complainant, the Respondent and any other employees or other witnesses whom the Investigator believes have information relevant to the Investigation.

5. The Investigator will prepare a report for the Area Manager stating her findings of fact and her conclusions as to whether the findings of fact constitute sexual harassment and a breach of the Employer's harassment policy and will provide legal advice based on those findings of fact and conclusions.

6. The Area Manager will treat the report as strictly confidential and will review the report only with their advisors. McNAIR

7. You will conduct an independent external investigation and will prepare a report for the Interim City Manager of the City and submit your report to the Interim City Manager.

8. Your report will contain findings of fact and independent privileged recommendation, opinions and advice.

9. The terms of reference for the external investigation will be as follows:

a. Whether the policies, procedures, and actions of the City in relation to the administration of the Dearness Home conform with the applicable regulatory standards and meet the test of due diligence in relation to the critical incident;

b. whether the procedures, policies and measures taken by the City in relation to quality of care and organizational effectiveness as they relates to the Dearness Home confirm with the best practices and establishes due diligence in relation the critical incident;

c. whether the City's procedures for investigating critical incidents conform to the applicable regulatory standards; and

d. whether the City's employees and its representatives complied with applicable policies, procedures and statutory standards from an administrative, operational, corporate, human resources and quality of care perspective in relation to the critical incident.