A British Columbia Supreme Court ruling has rejected a fired worker’s attempt to access an employer’s confidential investigative report tied to his termination, citing privacy and safety risks to third-party witnesses who cooperated under assurances of anonymity.
The decision, written by Justice Caldwell, provides further clarity on when solicitor-client privilege does not apply to third-party investigations while also affirming the court’s discretion to weigh the interests of non-party witnesses who might face serious harm if their identities became known.
Alleged breach of drug, alcohol policy
The plaintiff, A.J.S., worked for Heidelberg Materials Canada Limited (HMC) from 2004 to 2020. HMC, formerly known as Lehigh Hanson Materials Limited, had employed A.J.S. until suspending and then terminating him for alleged breaches of its drug and alcohol policy.
Central to the employer’s decision was an investigative report prepared by Integrated Risk Investigations Security Solutions Corp. (IRISS). IRISS was retained by HMC’s associate general counsel to look into alleged misconduct and provide information that would inform potential disciplinary measures, including termination.
A.J.S. later alleged that K.T. and the law firm Taylor Janis LLP, who represented him after his firing, had committed solicitor’s negligence. He argued that they failed to pursue a wrongful dismissal claim against HMC within the applicable limitation period, effectively barring him from seeking damages from his former employer.
In responding to these allegations, K.T. and the firm denied any wrongdoing. They insisted that the termination had been for just cause and that any loss claimed by A.J.S. could not be attributed to their legal representation.
Some files released
To bolster his case, A.J.S. applied for the production of his full employment file along with investigative reports prepared in connection with his dismissal. While production of the employment file itself was not seriously contested and was granted, the investigative report was a focal point of dispute. HMC opposed its release on the grounds of solicitor-client privilege. Counsel for HMC argued the report had been commissioned by corporate legal counsel and provided to external legal advisors for the purpose of obtaining advice on A.J.S.’s employment status.
Justice Caldwell found that solicitor-client privilege did not apply to the IRISS report. The judge noted that not every communication assisting a lawyer in giving or receiving legal advice is protected. In the decision, the judge cited the Ontario Court of Appeal’s reasoning in General Accident Assurance Company v. Chrusz: “Not every communication between a third party and a lawyer which assists in giving or receiving legal advice is protected by solicitor-client privilege.” The Court held that while a third party can be used as a conduit or “channel” of information essential to the solicitor-client relationship, simply gathering facts from external sources does not meet this threshold.
“When IRISS undertook its investigation and prepared its Report, it simply gathered information to pass to HMC’s counsel,” Justice Caldwell wrote. “It did not act as a channel or conduit of information between HMC and its counsel.” Since IRISS’s function was purely investigative and fact-gathering, the communication fell outside the narrow boundaries of solicitor-client privilege. As a result, the employer could not claim privilege to prevent disclosure of the report on that basis alone.
However, the judge’s analysis did not end there. Under Rule 7-1(18) of the Supreme Court Civil Rules, the court has discretion to order production of relevant documents from non-parties. While relevance is a factor, the court must also weigh privacy and other competing interests. Even though the report might have shed some light on the basis for A.J.S.’s termination — information that could be relevant in evaluating whether his former counsel acted negligently — the judge was not persuaded that its probative value outweighed the potential harm to witnesses.
Small First Nations community
Evidence showed that the IRISS investigation had taken place within a small First Nations community in Sechelt, where witnesses provided sensitive information under a promise of confidentiality. This included employees and independent contractors connected to HMC. Although redacting names might have been possible, the judge found that identities could be readily inferred.
The risk, according to HMC, was not mere embarrassment or inconvenience. HMC asserted that “the lives of the individuals may be at risk” if their identities were revealed, exposing them to potential reprisal.
In balancing these factors, Justice Caldwell looked beyond traditional relevance standards. The decision acknowledged that disclosing private details of non-parties who acted as whistleblowers would run contrary to the fair and proportionate administration of justice. The judge pointed to authorities that support careful consideration of non-party privacy interests. For instance, in Willard v. Mitchell, it was noted that courts may refuse production where doing so would cause undue adverse effects or risks to those not directly involved in the litigation.
In assessing the “probative value” of the IRISS report against the negative implications of disclosure, the judge concluded that the scale tipped in favour of protecting the witnesses. “The probative value of the Report is questionable,” wrote Justice Caldwell. The report might not have significantly bolstered A.J.S.’s case, nor would it help the defendants prove their denial of liability. Moreover, the defendants’ position — such as allegations that A.J.S. did not provide instructions to commence an action, failed to pay fees, and had the retainer terminated — did not rest on the contents of the IRISS investigation.
Witnesses akin to whistleblowers: Court
Crucially, the judge found that the witnesses who provided information were akin to whistleblowers. Their cooperation was secured with explicit assurances of confidentiality. As the decision notes, “It is clear from the material that many of these individuals would not have provided information but for the assurance of confidentiality.”
With these considerations in mind, the court exercised its discretion against producing the IRISS report. “I am persuaded that the privacy interests of the witnesses must be protected,” Justice Caldwell stated, concluding, “I exercise my discretion under Rule 7-1(18) against disclosure of the Report and I dismiss the plaintiff’s application on that basis.”
As a result, while A.J.S. secured access to his employment file, he was denied access to the investigative report. The judge’s reasoning confirms that when confidential information is at stake—especially from vulnerable third parties who have been assured anonymity—courts will closely scrutinize requests for document production. The ruling also clarifies that while a third-party investigation commissioned by counsel may inform legal advice, it will not necessarily attract solicitor-client privilege, and courts will still weigh privacy and safety interests heavily when deciding whether to order disclosure.
HMC was awarded costs at Scale B as against the plaintiff.
For more information, see Starrs v Troczynski, 2024 BCSC 2267 (CanLII).
