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Workplace investigations are a critical part of maintaining a safe, fair, and legally compliant work environment. Whether the issue is harassment, discrimination, misconduct, or a violation of company policy, employers have a responsibility to investigate complaints thoroughly. However, one area that often raises legal questions is the confidentiality of the investigation report — particularly whether it is protected by solicitor-client privilege.
This blog will explore what solicitor-client privilege means, when it applies to workplace investigation reports, and how employers can ensure their investigations remain legally protected when necessary.
Understanding Solicitor-Client Privilege
Solicitor-client privilege is a legal principle that protects communications between a lawyer and their client from being disclosed to third parties. The primary goal is to allow clients to communicate openly and honestly with their legal counsel, knowing that those discussions will remain confidential.
In Canada, solicitor-client privilege is recognized as a substantive right and is considered fundamental to the legal system. The Supreme Court of Canada has affirmed that it must be “as close to absolute as possible” to protect the integrity of the legal process.
Two Main Types of Legal Privilege in Workplace Investigations
When it comes to workplace investigations, there are typically two forms of legal privilege that may apply:
1. Solicitor-Client Privilege
This applies to direct communications between a lawyer and their client for the purpose of seeking or providing legal advice. If a lawyer conducts or supervises the investigation for the purpose of giving legal advice, then the report and communications may be protected.
2. Litigation Privilege
This form of privilege applies to documents and communications prepared for the dominant purpose of litigation. Even if the report was not created during an ongoing lawsuit, if it was produced in anticipation of legal action, it may be protected under litigation privilege.
When Are Investigation Reports Protected by Solicitor-Client Privilege?
Not all workplace investigation reports are automatically privileged. Several key factors must be met for solicitor-client privilege to apply:
1. Involvement of Legal Counsel
The most critical requirement is that a licensed lawyer must be involved in the process. The privilege only applies when the investigation is conducted by or at the direction of legal counsel. If the investigation is carried out by HR personnel or an external investigator who is not a lawyer, the report may not be privileged unless directed by legal counsel for legal advice.
2. Purpose of Legal Advice
The investigation must be conducted for the primary purpose of providing legal advice. If the investigation is conducted for general internal management purposes or compliance with company policy — rather than legal advice — solicitor-client privilege may not apply.
3. Confidentiality
The communication and report must be treated as confidential. If the report is shared with individuals beyond those necessary (e.g., disclosed to employees, unions, or regulatory bodies), the privilege may be considered waived.
Examples of Privileged and Non-Privileged Reports
Privileged Report Example:
An employee files a harassment complaint, and the employer immediately retains legal counsel. The lawyer either conducts the investigation personally or instructs a third-party investigator to do so for the purpose of legal advice. The findings are reported only to legal counsel and relevant decision-makers. This report is likely protected under solicitor-client privilege.
Non-Privileged Report Example:
The HR department conducts a routine internal investigation following a complaint, and the findings are discussed with the complainant and the accused. Legal counsel is not involved, or they become involved only after the report is finalized. In this case, solicitor-client privilege likely does not apply.
How to Ensure Solicitor-Client Privilege Applies
Employers seeking to protect investigation reports under solicitor-client privilege must take proactive steps:
1. Engage Legal Counsel Early
Engage a lawyer as soon as a serious complaint or legal risk arises. The lawyer should direct the investigation or instruct an investigator to work under their supervision.
2. Clearly Define the Scope and Purpose
State clearly — in writing — that the investigation is being conducted for the purpose of obtaining legal advice. This purpose should be documented in engagement letters, emails, or internal memos.
3. Limit Distribution
Treat all related documents, reports, and communications as confidential. Share them only with individuals necessary for decision-making, such as executives or legal counsel.
4. Avoid Mixing Business and Legal Advice
If the lawyer is also giving strategic HR advice or acting in a non-legal capacity, it can jeopardize privilege. Maintain a clear distinction between legal advice and business discussions.
Can Privilege Be Waived?
Yes, solicitor-client privilege can be waived — intentionally or unintentionally. Waiver occurs when the client shares privileged information with a third party or discloses it publicly. Once privilege is waived, it cannot be partially reclaimed; the entire communication or report may become discoverable in legal proceedings.
For example, if an employer voluntarily shares a privileged investigation report with a union or a regulatory body, they may unintentionally waive privilege.
To prevent this:
- Mark communications and reports as “Privileged and Confidential – Solicitor-Client Communication.”
- Educate HR teams and managers on the importance of maintaining confidentiality.
- Avoid forwarding privileged emails or documents beyond the legal team.
Litigation Privilege vs Solicitor-Client Privilege
It’s also important to understand the distinction between litigation privilege and solicitor-client privilege in the context of workplace investigations:
- Solicitor-Client Privilege is broader and lasts indefinitely, even after the legal issue is resolved.
- Litigation Privilege only applies during or in reasonable anticipation of litigation, and ends once the litigation is over.
If the primary reason for an investigation is to prepare for possible legal action, litigation privilege may apply even if solicitor-client privilege does not.
Why Legal Privilege Matters
Protecting the confidentiality of a workplace investigation can have significant advantages:
- Encourages Honest Participation: Witnesses and parties may be more willing to speak candidly.
- Prevents Unnecessary Disclosure: Protects sensitive or reputational information from becoming public.
- Reduces Legal Risk: Ensures that documents are not discoverable in court if properly privileged.
However, transparency may still be necessary in some cases — particularly in regulated industries or where workplace policies require disclosure. In such cases, employers must carefully weigh the benefits of privilege against legal and ethical obligations to share information.
Final Thoughts
Solicitor-client privilege plays a crucial role in protecting workplace investigation reports — but it’s not automatic. Employers must deliberately structure the investigation to meet the legal requirements for privilege to apply. Engaging a lawyer early, clarifying the purpose of the investigation, and maintaining strict confidentiality are key steps to preserving this protection.
When properly executed, a privileged workplace investigation not only safeguards the legal interests of the organization but also upholds procedural fairness and ensures that serious complaints are addressed professionally and legally.
For employees or employers facing complex workplace disputes, consulting experienced labour lawyers Toronto can help navigate investigations, privilege, and legal obligations effectively.
