Is That "Confidential" Investigation Report Actually Confidential?

If not set up properly, that "confidential" investigation report may not be so confidential after all. An Ontario arbitrator has ruled that an investigation report prepared by a lawyer is not covered by solicitor-client or litigation privilege as a matter of right. In Durham Regional Police Association v Durham Regional Police Services Board, the arbitrator ordered production of an investigation report to the union which was dissatisfied with the employer's handling of a harassment situation. However, a different result may have followed if the investigator's terms of reference had explicitly reserved privilege. This case demonstrates the importance of carefully drafting the investigator's terms of reference before embarking on a workplace investigation.