Page 17 - CCCA 292467 Magazine_Spring 2019

{ FEATURE }

“To have a general protocol that lays out what kind of steps the allegations, the person who allegedly committed the trans-
might normally be followed gives employees a greater sense of gression and the kind of investigation that has to be conducted.
what the process will look like, what their rights are and makes If the allegations of wrongdoing or ethical breaches target
for a transparent process. It gives employees greater faith in the someone who works closely with in-house counsel, the matter
integrity of the investigation,” says Phillips, who acted as coun- would be sent to external counsel because “we wouldn’t have
sel to the External Review on Sexual Misconduct and Sexual the independence and the objectivity to conduct the investiga-
Harassment in the Armed Forces, and to an independent review tion,” says Dufort-Langlois. Or if the allegations are so wide-
commissioned by the UN on sexual abuse by peacekeepers. spread that it would take an inordinate amount of staff and
resources to conduct interviews and review the documentary
evidence, that too would be a situation where external counsel
would be called to take over the investigation, he adds.
tHe inVestigator Even then, in-house counsel should play a central role in
the internal investigation. If outside counsel has been retained,
chances are in-house counsel will be the key contact for the
Much of the integrity of the investigation team. Besides helping smooth the fow of infor-
investigation rests with the mation to the external team, in-house should be acting as the
selection of the investiga- gatekeeper by documenting the process, controlling legal spend
tor. Ideally, “the investiga- and ensuring timelines are respected.
tion should be conducted
by somebody who is free of
actual or perceived bias and
who has the necessary com- PriViLege
petencies to conduct the
investigation and perhaps
the experience on the particular subject matters,” says gaiL If in-house counsel are retained as lead investigator, there are
gatcHaLian, a trained workplace investigator who practic- practical considerations they must keep in mind, pitfalls they
es employment, labour and human rights law at Pink Larkin. should avoid and skills they should develop.
However, the natural inclination is to rely on in-house coun- To begin, in-house counsel must be aware of the reach of
sel, who have an inherent understanding of the organization, privilege, an issue that the courts themselves are still grappling
have the ability to assess the strength of evidence and can with. In Howard v. City of London, the court held that the terms
potentially maintain solicitor-client privilege (and perhaps of the retainer may attract solicitor-client privilege in an in-
even litigation privilege) over the investigation. vestigation conducted by a lawyer. On the fipside, the Federal
Court of Appeal held in Slansky v. Canada (Attorney General)
Some, though, question the merits of selecting in-house that “while a retainer is important evidence of whether a solic-
counsel to lead the investigation. They are, after all, employees of itor-client relationship has been established, the terms of the
the organization and may end up reporting to individuals who retainer are not necessarily conclusive and must be construed
eventually may become central fgures of an investigation. On in light of all the relevant circumstances.” More recently still,
top of that, employees may be less obliging with someone they the Alberta Court of Appeal weighed in on the intersection
may perceive as being part of management, thereby hampering between privilege and internal investigations and held that the
the fact-fnding mission. Then there is the possibility that if in- contents of an internal investigation may be privileged, but the
house counsel act as the lead investigator and a legal proceeding basis for the claim may be scrutinized. In Alberta v. Suncor Ener-
is instituted after the investigation, they may no longer be able to gy, the appeal court held that a statutory obligation to carry out
represent the interests of the organization if called as a witness. an investigation and prepare a report does not preclude from
The lawyerly response to the conundrum of whether to ap- asserting privilege over the documents and records stemming
point in-house counsel as lead investigator or retain external from the internal investigation. The Supreme Court of Canada
counsel is, “It depends.” Essentially, it hinges on the nature of dismissed the leave to appeal.

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