When I first started doing workplace investigations, I don’t think it ever crossed my mind that someone might someday get to see the notes I took in interviews, or anything else in my investigation file. Over time, this began to be discussed as a risk, and it certainly made me more thoughtful about what I recorded in connection with my investigation work. Today, the chance that a workplace investigator will be required to produce some of their written investigation materials has increased significantly. The question is what an investigator might be required to produce and in what circumstances.

A recent decision from the British Columbia Human Rights Tribunal (“BCHRT”) shows us that there are things that every investigator – and organization that retains them – should keep in mind regarding possible disclosure of contents of the investigation file.

The Case¹

In 2023, an employee (Ms. V.) complained to her employer (The Kamloops and District Elizabeth Fry Society – the “Society”) that the Executive Director had sexually harassed her. The Society retained an external investigator to investigate the allegations and the investigator ultimately found that Ms. V.’s allegations could not be substantiated. This prompted Ms. V. to commence a lawsuit against the Society and to also bring a sexual harassment complaint to the BCHRT against the Society and the respondent.

In the BCHRT complaint, Ms. V. alleged that the external investigation was unfair. The Society had provided her with some of the workplace investigation documents, including the investigator’s report, but she brought a motion before the BCHRT seeking disclosure of additional documentation, including draft investigation reports, phone memoranda, the investigator’s internal work product, interview notes and memos. The Society opposed this disclosure request.

When are workplace investigation files subject to disclosure?

1. 1. The General Principles

The BCHRT confirmed that parties in its process are required to disclose all documents in their possession or control that may be relevant to the complaint or response to the complaint. This aligns with disclosure obligations in many other jurisdictions and forums. The adequacy and fairness of the investigation were issues in dispute in this complaint and so there seemed to be no dispute that workplace investigation materials were generally relevant to the complaint.

1. 2. Draft reports and investigator’s work product

In considering the draft reports and the investigator’s personal notes reflecting preliminary impressions, analysis, credibility assessments, and tentative conclusions, the BCHRT noted that there was no evidence that they were provided to the Society, relied upon by the Society, or incorporated into the final report. It was further noted that an investigator’s views may evolve during the course of an investigation and that these materials form part of the investigator’s internal working process. The issues in dispute concerned the conduct and fairness of the investigation and the conclusions ultimately communicated to the Society, not the investigator’s preliminary or evolving thinking. Accordingly, the BCHRT did not order disclosure of the draft investigation reports or the investigator’s personal notes.

1. 3. Witness interview notes, and other documents containing evidence

However, the BCHRT reached a different conclusion with respect to the witness interview notes, interview memoranda, and phone memoranda recording information obtained during the investigation. Ms. V. argued that these documents recorded the evidence gathered by the investigator and were arguably relevant to assessing the fairness of the investigation and the evidentiary basis for the investigator’s conclusions. The Society objected to their disclosure, arguing that these were protected by litigation privilege.

The BCHRT affirmed that litigation privilege applies where litigation was reasonably contemplated at the time the document was created, and the dominant purpose for its creation was the conduct of that litigation. The BCHRT accepted that litigation was a reasonable prospect at the time the investigation commenced, but was not satisfied that the dominant purpose for creating the witness interview notes, interview memoranda, and phone memoranda was the conduct of litigation.

1. 4. Application of Litigation Privilege

In holding that litigation privilege did not apply in this case, the BCHRT wrote:

The fact that litigation was contemplated does not establish that litigation was the dominant purpose of the investigation. The terms of reference indicate that the investigator was retained to determine whether the allegations were substantiated and to assess the credibility of the parties and witnesses. Those are the hallmarks of a workplace investigation undertaken to address allegations of workplace misconduct.

It also did not help that certain documents were marked “privileged and confidential” or “privileged work product.” The BCHRT noted that such language does not establish that the documents are privileged: “Privilege is determined by the nature and purpose of the documents, not by the labels attached to them.”

The Society had not established litigation privilege over the witness interview notes, interview memoranda, and phone memoranda, and was therefore ordered to disclose them to Ms. V.

What Does this mean for the Practice:

There are a number of key points that investigators and organizations retaining them can learn from this case:

• Marking documents “privileged” does not make them privileged: Privilege will be determined by the nature and purpose of the documents; not the labels placed on them.
• For documents to be considered litigation privileged, they must be created for the dominant purpose of litigation: The vast majority of investigations done by organizations looking into allegations of harassment or workplace misconduct pursuant to an internal policy will therefore not be considered privileged.
• Investigators should not have to produce their work product: This case recognizes that an investigator’s thinking evolves throughout the course of the investigation and to the extent that this is reflected in documents, these may not be relevant to the final decision, and may therefore be protected from disclosure.
• It is highly likely that an investigator will be required to produce any documentation or recordings containing evidence, and relating to the ways in which they collected evidence: Investigators can anticipate that, through this disclosure, the ways in which they conduct interviews and gather evidence will be highly scrutinized, presumably with an eye towards determining whether the investigator was truly acting neutrally and independently.

Investigators would be wise to conduct their investigations and maintain their files in a way that recognizes that, should the investigation ever be challenged in a subsequent legal proceeding, there exists a chance that documentation in their file may be required to be produced.

¹ Ms. V. v. The Kamloops and District Elizabeth Fry Society and another, 2026 BCHRT 198.