Careful, Lawyer’s Communications Are Not Always Protected

• Author: Marie-Yosie Saint-Cyr, First Reference Managing Editor
• Date: October 18, 2018

The Ontario Superior Court of Justice recently found that the communications and conduct of the employer’s lawyer regarding sexual harassment investigation were not privileged and could be referred to in the employee’s Statement of Claim in the litigation against the employer

What happened?

A long-service employee (employed since 2002), while being placed on a performance improvement plan (PIP), raised allegations that her supervisor was bullying and sexually harassing her. In response, her employer:

• Conducted an investigation but failed to interview the complainant employee during this process;
• Concluded that the claims were unsubstantiated.

The results of the investigation were communicated to the employee but she received no written report. Following the conclusion of the investigation, the employee was denied her annual salary increase because she was on a PIP. That same day she began a pre-approved medical leave of absence to donate her kidney to her brother.

Upon her return from medical leave, the PIP resumed and she had to continue working with the same supervisor.

The employee in response retained an employment lawyer who asked for a severance package on her behalf.

The employer retained an employment lawyer as well and discussions started between the parties. The lawyers communicated by phone and correspondence over the next few months to discuss the results of the investigation and the reason for the PIP.

The employee’s lawyer urged the employer’s lawyer to conduct a new or continued and more thorough investigation with a written conclusion, according to the employer’s statutory obligations under the Occupational Health and Safety Act as well as to comply with the Ontario Human Rights Code. The employee’s lawyer also provided names of additional witnesses and the employee’s willingness to consider a severance package. The employer did conduct a second investigation to comply with their statutory obligations, did interview the witnesses named by the employee’s lawyer and provided a written report.

Shortly thereafter, the employee filed a Statement of Claim for constructive dismissal, which included reference to some of her lawyer’s discussions and conduct with the employer’s lawyer.

The employer filed a motion to strike some paragraphs of the Statement of Claim on the basis that the employee has pleaded without prejudice settlement discussions between the lawyers which are protected by settlement privilege. They assert that the employee...