Ms. V v. The Kamloops and District Elizabeth Fry Society and another, 2026 BCHRT 198
Date Issued: September 15, 2026
File: CS-010655
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Ms. V
COMPLAINANT
AND:
The Kamloops and District Elizabeth Fry Society and Ms. W
RESPONDENTS
REASONS FOR DECISION
APPLICATIONS FOR DISCLOSURE OF DOCUMENTS AND TO LIMIT PUBLICATION
Rules 5 and 23
Tribunal Member: Shannon Beckett
On her own behalf: Ms. V
Counsel for the Respondent Kamloops and District Elizabeth Fry Society: Glen Stratton
On her own behalf: Ms. W
I INTRODUCTION
[1] This decision considers Ms. V’s applications for document disclosure and to limit publication of her personal information.
[2] Ms. V has filed a human rights complaint against her former employer, the Kamloops and District Elizabeth Fry Society [Society], and the former executive director of the Society, Ms. W [together the Respondents]. Ms. V alleges that Ms. W sexually harassed her over several months and sexually assaulted her during a meal at a restaurant by touching her without her consent. She further alleges that when she reported Ms. W’s conduct to the Society, the Society failed to respond to or address her allegations appropriately. Although the Society commissioned a third party to investigate the allegations, Ms. V alleges that the investigation was conducted unfairly and that the investigator improperly concluded that she bore responsibility for Ms. W’s conduct toward her. Ms. V further alleges that the Society failed to provide her with adequate support throughout the investigation process.
[3] The Society denies these allegations. It says that Ms. V’s complaints were investigated in a timely, fair, and impartial manner through an independent third-party investigation and relies on the investigator’s findings in support of its defence. Among other things, the Society says the investigation did not substantiate Ms. V’s allegations.
[4] With respect to her disclosure application, Ms. V seeks production of documents regarding the third-party investigation. She says the Society has selectively disclosed documents in relation to the investigation and that she requires additional disclosure in order to assess and challenge the fairness and independence of the investigation. With respect to her application to limit publication, Ms. V seeks to limit publication of her name in connection with this complaint due to the sensitive nature of the complaint and the potential backlash that her and her family members could experience if her connection to the complaint becomes public.
[5] The Society opposes Ms. V’s disclosure application and says it has already disclosed most documents relating to the third-party investigation, and that the only remaining documents are either privileged or contain irrelevant financial information. Both the Society and Ms. W oppose Ms. V’s application to limit publication of her personal information.
[6] For the following reasons, I allow both of Ms. V’s applications, in part. While I decline to grant the specific orders sought by Ms. V, I order that she be anonymized in Tribunal decisions until the complaint is heard on its merits. Further, while I do not order disclosure of all the documents sought by Ms. V, I order that by no later than two weeks from date of this decision, the Society disclose the investigator’s witness interview notes, interview memoranda, and phone memoranda.
[7] In this decision, I have anonymized Ms. W on my own motion. Although she did not apply for anonymization, I find that many of the considerations supporting anonymization of Ms. V apply equally to Ms. W. In particular, the proceeding is at an early stage, the allegations in the complaint are of a sensitive nature, and the complaint contains personal information about both individuals. If any party objects to the anonymization of Ms. W in this decision, they may apply for reconsideration of that aspect of the decision within 14 days of the date this decision is issued.
[8] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II APPLICATION TO LIMIT PUBLICATION
A. Application and Response
[9] Ms. V seeks two orders limiting publication of her personal information. First, she seeks an order preventing any person from publishing or broadcasting her name, initials, or “any information” that could identify her or her family members in relation to her complaint, or in relation to any allegations set out in her complaint. Second, she seeks an order preventing any person from publishing or broadcasting any information “that would tend to identify websites or other sources” that identify her in connection with her complaint, or any of the allegations set out in her complaint.
[10] In support of her application, Ms. V identifies four privacy interests that she says outweigh the public interest in open access to these proceedings. First, she says that, as a person alleging sexual assault, being publicly identified in connection with the allegations would cause her distress, retraumatization, and embarrassment. Second, she says the complaint contains highly personal information about her, including counselling and other medical records. Third, she says her husband holds a prominent public-facing position and is subject to significant public scrutiny. She is concerned that publicity relating to her complaint could attract attention to him and, in turn, result in renewed attention to the allegations and her own experiences. Fourth, she says she lives in a small community where maintaining anonymity is difficult and that publication of her identity could adversely affect her children, including by exposing them to unwanted attention, questioning, harassment, threats, or violence from members of the community. In support of her application, Ms. V filed an affidavit from her counsellor, who states that in her professional opinion, public disclosure of Ms. V’s personal information or the information contained in the complaint would “significantly aggravate” Ms. V’s mental health symptoms.
[11] Ms. W opposes the publication ban application. She submits that the orders sought are broader than necessary to protect any legitimate privacy interests and would unduly restrict discussion of matters that have already been publicly reported. She further submits that the harms identified by Ms. V are speculative and unsupported by evidence.
[12] Ms. W also argues that granting the application would create an unfair asymmetry. She says she has been publicly identified in connection with the allegations in this complaint that remain disputed and unproven, despite having been considered in two independent processes. She says a workplace investigation did not substantiate the sexual harassment allegations and that a police investigation determined there was insufficient evidence to pursue criminal charges. In her submission, the fact that she has already borne the public consequences of the allegations is a relevant consideration in assessing whether Ms. V should be permitted to remain anonymous.
[13] The Society also opposes the application. It submits that the orders sought are neither necessary nor proportionate and that the Tribunal has less intrusive means available to protect sensitive information while preserving the openness of its proceedings. While acknowledging the seriousness of the allegations and the importance of ensuring that complainants are not discouraged from bringing forward allegations of sexual misconduct, the Society says there is no presumption that proceedings involving such allegations should be anonymized.
[14] The Society also submits that the allegations remain strongly disputed and notes that they were previously considered through an independent workplace investigation and a police investigation. It echoes Ms. W’s submission that the workplace investigation did not substantiate the allegations and that police determined there was insufficient evidence to pursue criminal charges. The Society says these considerations, while not determinative of the merits, are relevant context. It further submits that many of the harms identified by Ms. V are speculative and that concerns about the reputation of her husband, who is not a party to the complaint, are not a proper basis for the relief sought.
[15] In addition, the Society submits that Ms. V’s identity is already known to some members of the relevant community through media reporting and related discussions. As a result, it argues that the practical utility of anonymization is limited because confidentiality has already been diminished.
[16] Ultimately, the Society submits that anonymization would reduce the transparency of the Tribunal’s process while leaving the Society and Ms. W publicly associated with disputed allegations. It says the interests of justice favour permitting the Tribunal’s eventual determination to be public, whatever the outcome.
B. General principles
[17] As a starting point, people who take part in Tribunal proceedings should expect some loss of privacy with respect to the matters at issue between them: Sinclair v. Blackmore and others, 2004 BCHRT 37 at para. 29. Tribunal proceedings are presumptively open to the public, reflecting the open court principle, which the Supreme Court of Canada has recognized as a foundational feature of Canada’s justice system: Sherman Estate v. Donovan, 2021 SCC 25 at paras. 1-2. Openness promotes accountability, public understanding, and confidence in the administration of justice. Accordingly, under the Tribunal’s Rules of Practice and Procedure, a party seeking to limit public access to information must demonstrate that their privacy interests outweigh the public interest in open Tribunal proceedings: Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a).
[18] In deciding whether to limit publication of information, the Tribunal may consider factors such as the stage of the proceeding, the nature of the allegations, the sensitivity of the information at issue, and the nature and likelihood of any alleged harm: JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 30. The Tribunal may also consider whether the proposed restriction is narrowly tailored and impairs openness no more than necessary: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. Speculative concerns about reputational harm, without more, will not be sufficient to justify limiting the openness of the Tribunal’s process: Stein at para. 64(c).
C. Anonymization
[19] I find that Ms. V’s privacy interests justify anonymization at this stage of the complaint process. However, she has not established that the broader publication ban she seeks is necessary. In my view, anonymization of Ms. V in Tribunal decisions appropriately balances her privacy interests with the public interest in open Tribunal proceedings.
[20] In weighing Ms. V’s privacy interests against the public interest in open Tribunal proceedings, I have considered the following factors.
[21] First, this complaint is in early stages, and no final decision has been made on the merits. In these circumstances, there is greater scope to limit public access to identifying information.
[22] Second, the nature of the allegations in the complaint involve sexual harassment and impropriety. Such allegations are recognized in Tribunal jurisprudence as attracting the public’s “prurient” attention: C.N. v. Health Authority, 2014 BCHRT 265 at para. 51. In this context, “prurient” interest refers to public attention motivated by the sensational or intimate nature of the allegations rather than any legitimate interest in the adjudication of the complaint. In my view, the risk that identification of Ms. V will attract this type of attention weighs in favour of anonymization. This is particularly so because anonymization often affects only a “sliver of information” and therefore often minimally impairs the openness of the proceeding: CS at para. 37.
[23] Third, the complaint references substantial personal and sensitive information about Ms. V, including medical and counselling information. Such information engages significant privacy interests. Given the nature of the information at issue, and given that anonymization would not prevent the public from understanding the substance of the allegations or the Tribunal’s reasoning, this factor weighs in favour of anonymization.
[24] With respect to Ms. V’s submission regarding reputational harm, I do not find that this factor weighs in favour of anonymization. The principal harm identified by Ms. V is potential harm to her husband’s reputation arising from his public-facing profession. However, Ms. V’s husband is not a party to this complaint, and the connection between the relief sought and the asserted reputational impact on him is indirect. Moreover, the alleged harm rests on an assumption that members of the public would seek to draw adverse conclusions about, or otherwise target, Ms. V’s husband because of her participation in this proceeding. There is no evidence before me to support that proposition. In the absence of an evidentiary foundation, I am unable to conclude that the risk to her husband’s reputation rises above the level of speculation.
[25] I reach a similar conclusion regarding Ms. V’s concerns about potential harassment, threats, or violence directed at her children. While I do not discount the seriousness of such harms where there is evidence to support them, none has been presented here. Ms. V has not identified any specific incidents, communications, circumstances, or other objective basis that would permit me to assess whether such risks are reasonably foreseeable. On the material before me, these concerns remain hypothetical. As a result, I am not persuaded that the asserted risks to her children provide a basis for anonymization.
[26] However, notwithstanding my findings regarding the alleged harms to Ms. V’s husband and children, I am satisfied that the circumstances of this case, viewed as a whole, justify anonymization at this stage of the proceeding.
[27] I do not accept the Respondents’ assertions that because some members of the public may already know Ms. V’s identity in relation to this complaint, anonymization would serve no purpose. Even if I accepted the assertion that some people have become aware of Ms. V’s identity in relation to this complaint, publication of Ms. V’s identifying information in a Tribunal decision would substantially amplify the dissemination of that information by placing it in a publicly accessible decision that can be easily searched, shared, and accessed indefinitely.
[28] I also do not accept the Respondents’ submission that anonymization should be denied because the allegations are vigorously disputed and because other processes have considered and rejected, or found unsubstantiated, allegations arising from the same circumstances. This submission would require me to engage, at least indirectly, in an assessment of the merits of the complaint. That is not the purpose of an application for anonymization, nor is it appropriate for the Tribunal to make such assessments at this preliminary stage of the proceeding.
[29] That said, circumstances may evolve as the complaint proceeds and the evidentiary record develops. If, at a later stage of the proceeding, developments arise bearing on the appropriateness of continued anonymization or the terms of the anonymization order, the parties remain at liberty to apply for reconsideration of the orders made in this decision. Accordingly, I do not find that the Respondents’ submissions regarding the disputed nature of the allegations weigh against anonymization at this stage.
D. Publication Ban
[30] Although I have found that anonymization is appropriate at this stage of the proceeding, I am not persuaded that the broader publication ban sought by Ms. V is necessary. Although both anonymization orders and publication bans limit public access to information, they do so in materially different ways. An anonymization order principally governs the Tribunal’s own publication of information and allows the public to scrutinize the allegations, evidence, and outcome of the proceeding without identifying the complainant. The publication ban sought by Ms. V would go considerably further by restricting the ability of third parties to publish information. As a result, it constitutes a more significant intrusion on the principles of openness and freedom of expression.
[31] A publication ban is a significant restriction on openness and freedom of expression. Courts have recognized that such orders should only be granted where they are necessary and where less restrictive alternatives are insufficient: R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Dagenais v. CBC, [1994] 3 S.C.R. 835.
[32] In this case, the complaint has been before the Tribunal for several years. Ms. V submits that she has not, to date, been publicly identified in connection with the complaint. Accepting that submission, the harms she seeks to prevent through the requested publication ban have not materialized despite the passage of time. While not determinative, that fact is relevant to assessing the likelihood of future harm. On the evidence before me, the risk of harm identified by Ms. V appears remote.
[33] Further, in accordance with the above reasons, I am satisfied that anonymization of Ms. V provides meaningful protection against dissemination of identifying information through the Tribunal’s own processes while preserving an appropriate degree of transparency.
[34] In any event, quite apart from whether additional publication restrictions are necessary, I would not grant the publication ban in the terms requested. The first proposed order would prohibit publication of Ms. V’s name, initials, or “any information” that could identify her or her family members. The second would prohibit publication of information that “would tend to identify websites or other sources” that identify her. Both formulations are imprecise and lack clear, objective limits. Orders restricting publication must be framed with sufficient precision that those subject to them can readily ascertain the conduct that is prohibited. The proposed orders do not meet that standard.
[35] Accordingly, while anonymization is warranted at this stage of the proceeding, I decline to grant the broader publication ban requested.
E. Conclusion
[36] For the above reasons, I order that Ms. V be anonymized in any decisions issued by the Tribunal in relation to this complaint until the complaint is heard on its merits. This order reflects the current stage of the proceeding. If the complaint proceeds to a hearing, it will be for the Tribunal member hearing the matter to determine whether anonymization should continue beyond that stage. In the meantime, the parties remain at liberty to apply for reconsideration if circumstances arise that warrant it.
III APPLICATION FOR DISCLOSURE OF DOCUMENTS
A. General Principles
[37] Parties in the Tribunal’s process are required to disclose all documents in their possession or control that may be relevant to the complaint or response to the complaint: Rules of Practice and Procedure, Part 6. Documents are within a party’s “control” when the party has the right to obtain them. This includes records held by third parties to the complaint: CFO v. The Organization, 2022 BCHRT 55 at para. 88.
[38] The purpose of disclosure is to “provide a fair opportunity for parties to prepare their case and to make full answer and defence”: Smith v. Provincial Health Services Authority, 2014 BCHRT 223 at para. 18.
[39] The Tribunal may order disclosure of documents where the applicant has established that the document is relevant or arguably relevant to a fact in issue in the complaint: Green v. Barry and another, 2017 BCHRT 112 at para. 22. The threshold is low, but the Tribunal’s process should not be used as a fishing expedition: Oya v. University of British Columbia and another (No. 3), 2021 BCHRT 31 at para. 15. Disclosure should, like all aspects of the Tribunal’s process, serve the goals of efficiency and fairness in the administration of justice: Employee v. Overwaitea Food Group Ltd, 2018 BCHRT 84 at para. 10. Proportionality is an important consideration: Johar and others v. College of Veterinarians of BC and another, 2020 BCHRT 179. The Tribunal may decline to order disclosure of arguably relevant documents which are “unnecessary to a just and timely resolution of the complaint”: Smith v. Provincial Health Services Authority, 2015 BCHRT 112 at para. 53.
[40] With these principles in mind, I turn to Ms. V’s application.
B. Documents Sought and Response
[41] Ms. V seeks production of “all records relating to the investigation of [the investigator] …, including but not limited to” the following documents or categories of documents:
a. The investigator’s retainer agreement, mandate letter, instructions, terms of reference, or any other records setting out the scope and purpose of the investigation;
b. All notes, recordings, transcripts, summaries, or other records created by the investigator in the course of conducting interviews or gathering evidence;
c. All witness statements, interview summaries, or communications provided by any witness to the investigator;
d. All documents, records, correspondence, emails, text messages, or other materials provided to or reviewed by the investigator as part of the investigation;
e. All communications between the investigator and the Respondents, including the Society, its representatives, employees, agents, and legal counsel, concerning the commencement, scope, conduct, findings, or conclusions of the investigation;
f. All draft and final versions of the investigation report, including any appendices, schedules, attachments, or supporting materials;
g. All records relating to the Respondents’ decision to retain the investigator, including any communications regarding the purpose of the investigation and whether it was intended to be independent;
h. Any records reflecting the disclosure or circulation of the investigation report, notes, or findings to any Respondent or third party.
[42] Ms. V argues these documents are relevant and must be produced because the Respondents have placed the investigation report directly in issue, the independence of the investigator is a live issue, and she cannot fairly test the reliability and independence of the investigation without the requested documents. Additionally, Ms. V says that either the documents are not privileged, or that the Society waived privilege over the documents when they decided to rely on the investigation report and only selectively disclose documents in relation to the investigation.
[43] The Society submits that many of the documents Ms. V is seeking have already been produced to her, and that prior to this application, Ms. V had not requested some of the categories of documents she now requests in this application. The Society says that before and after receiving this application, it voluntarily disclosed all relevant non-privileged documents relating to the investigation, including:
a. the Investigation Report;
b. the investigator’s retainer agreement, subject only to limited redactions respecting the investigator’s confidential compensation arrangements;
c. correspondence between the investigator and the Complainant;
d. correspondence between the investigator and the Society related to receipt of the complaint;
e. correspondence between the investigator and Ms. W relating to the conduct of the investigation;
f. communications addressing confidentiality concerns raised during the investigation;
g. interview scheduling and procedural correspondence;
h. requests for further information and documentary evidence;
i. communications demonstrating how evidence was disclosed to the parties and put to each of them for response throughout the investigation;
j. the underlying factual materials considered by the investigator; and
k. numerous additional records voluntarily produced following the Complainant’s subsequent disclosure request.
[44] The Society says that the only documents relating to the investigation that have not been disclosed are the following documents that are either privileged, or irrelevant to the fairness of the investigation:
a. draft investigation reports;
b. phone memoranda;
c. the investigator’s internal work product;
d. interview notes and memos;
e. communications between the Society and its legal counsel about the investigation; and
f. the investigator’s confidential compensation arrangements contained within the retainer agreement.
[45] The Society claims litigation privilege over (a)-(e), solicitor-client privilege over (e), and submits that (f) contains confidential and irrelevant financial information.
C. Decision
[46] Ms. V does not appear to contest that the only remaining documents that relate to the investigation are the ones identified by the Society above in categories (a)-(f). She does, however, contest the Society’s assertions of privilege and irrelevance.
1. Redactions to the retainer agreement
[47] With respect to the Society’s submission that the redactions it made to the retainer agreement contain only to irrelevant financial information, Ms. V says this assertion “cannot replace the evidentiary foundation required to establish privilege over the redacted material”. I do not accept Ms. V’s submission on this point.
[48] First, the Society is not claiming privilege over this material, rather it is arguing the redacted material is related only to the investigator’s compensation, and is therefore irrelevant. Second, Ms. V has not identified how the investigator’s financial compensation is arguably relevant to any issue in dispute in the complaint. Third, to the extent Ms. V is suggesting the Society needed to provide an evidentiary foundation to support the basis for the redactions, she does not explain what evidence, short of removing the redactions on the material, would satisfy her. The Society provided a statutory declaration setting out that the redactions to the retainer agreement were only in relation to compensation of the investigator.
[49] Ultimately, I find that the Society has provided a sufficient evidentiary basis for establishing that the redacted material is solely to do with the investigator’s compensation, and Ms. V has not demonstrated that material is arguably relevant to a fact in issue in this complaint. I dismiss Ms. V’s application for disclosure of this material.
2. Communications between the Society and its legal counsel about the investigation
[50] The Society claims solicitor-client privilege over these documents.
[51] Ms. V says the Society has failed to establish this privilege applies because the mere involvement of litigation counsel does not, without more, establish that every communication was made for the purpose of seeking or providing legal advice.
[52] Material that is protected by solicitor client privilege is presumptively inadmissible. For a party to claim solicitor-client privilege, the communication must be between lawyer and client for the purpose of seeking or giving legal advice and intended to be confidential: Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] 2 SCR 319.
[53] The Society’s statutory declaration describes the communications as being between the Society and its lawyer about the investigation. The Society asserts in its submissions that these communications are requests for and provision of legal advice respecting the Society’s legal rights, obligations, and response to the complaint.
[54] I find no reason to doubt the Society’s description of the documents at issue. That description has been provided through counsel, who owes a professional duty to the Tribunal not to mislead it. Based on the evidence before me regarding the nature and purpose of the documents, I am satisfied that the Society has provided a sufficient evidentiary foundation for its claim of solicitor-client privilege.
[55] Additionally, I do not accept Ms. V’s submission that the Society waived solicitor-client privilege by introducing the investigation report.
[56] Solicitor-client privilege belongs to the client and may be waived only by the client, either expressly or by implication: Mayer v. Osborne Contracting Ltd., 2012 BCCA 77 at para. 179.
[57] Ms. V argues that the Society cannot use privilege as both a sword and a shield: Huang v. Silvercorp Metals Inc., 2017 BCSC 795 at para. 143. In her submission, the Society has selectively relied on the investigation and its findings to support its defence to the complaint while withholding related privileged communications. She says this prevents her from fully testing the fairness, independence, and reliability of the investigation.
[58] I am not persuaded by Ms. V’s submission that the Society waived solicitor-client privilege by relying on the investigation report. In relying on the report, the Society does not place at issue the nature, content, or effect of any legal advice it may have received in relation to the investigation. Rather, it relies on the investigation and its findings as part of its response to the complaint. Those are distinct matters.
[59] The fact that legal advice may have been sought or provided in connection with a workplace investigation does not, without more, amount to a waiver of privilege over that advice. Seeking legal advice in the context of a workplace investigation is neither unusual nor inconsistent with a party later relying on the fact of the investigation or its findings. In my view, accepting Ms. V’s position would significantly expand the circumstances in which privilege is deemed to have been waived.
[60] More fundamentally, a party should not be required to choose between relying on the existence or findings of an investigation and preserving the confidentiality of legal advice obtained in relation to that investigation. Such an approach would undermine the important public interest served by solicitor-client privilege, namely enabling parties to seek and receive candid legal advice. On the facts before me, I am not satisfied that the Society has put the content of any privileged communication in issue, or otherwise acted in a manner inconsistent with maintaining privilege over those communications.
[61] Accordingly, I find that the Society has not waived solicitor-client privilege with respect to correspondence between the Society and its legal counsel relating to the investigation report.
3. Draft investigation reports, phone memoranda, the investigator’s internal work product, and interview notes and memos
[62] To begin, I observe that the parties do not appear to dispute that the investigation and materials relating to the investigation are generally relevant to this complaint. While the Society argues that Ms. V has not provided an evidentiary foundation to support her assertion that the investigation was conducted unfairly, it is clear that the Society is relying on the investigation and its findings heavily in its defense of Ms. V’s complaint. Further, it has already disclosed a significant number of documents relating to the investigation.
[63] Ms. V alleges that the Society’s response to her complaints was itself discriminatory. In particular, she alleges that the Society’s investigation was unfair and improperly blamed her for conduct she says was directed towards her by Ms. W. The Society disputes those allegations and expressly relies on the position that Ms. V’s complaints were investigated in a timely, fair, and impartial manner. In these circumstances, the adequacy and fairness of the investigation are themselves issues in dispute in the complaint. Further, because the Society relies on the investigation and its findings in support of its defence, the Tribunal may ultimately be required to determine what weight, if any, should be afforded to those findings. Accordingly, at least some documents relating to the conduct of the investigation are arguably relevant to issues in dispute.
[64] However, that conclusion does not mean that every document generated during the investigation is arguably relevant. The Society has grouped together draft investigation reports, interview notes, interview memoranda, phone memoranda, and the investigator’s internal working materials. In my view, these categories must be considered separately.
[65] I begin with the draft reports and the investigator’s personal notes reflecting preliminary impressions, analysis, credibility assessments, or tentative conclusions. I am not persuaded that these documents are arguably relevant to an issue in dispute in the complaint. There is no evidence that they were provided to the Society, relied upon by the Society, or incorporated into the final report. The fact that an investigator’s views may evolve during the course of an investigation does not make each intermediate step in that process relevant to the issues before the Tribunal. In my view, these materials form part of the investigator’s internal working process. The issues in dispute concern the conduct and fairness of the investigation and the conclusions ultimately communicated to the Society, not the investigator’s preliminary or evolving thinking. Accordingly, I do not order disclosure of the draft investigation reports or the investigator’s personal notes.
[66] I reach a different conclusion regarding the remaining categories of documents, namely the witness interview notes, interview memoranda, and phone memoranda recording information obtained during the investigation. These documents record the evidence gathered by the investigator and are arguably relevant to assessing the fairness of the investigation and the evidentiary basis for the investigator’s conclusions.
[67] The Society says these remaining documents are protected by litigation privilege. Ms. V disagrees and further submits that any privilege attaching to the documents has been waived.
[68] Litigation privilege protects communications whose dominant purpose is preparation for litigation: Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at para. 19. Its purpose is to ensure the efficacy of the adversarial process by maintaining a protected zone in which a party can investigate and prepare its case: Blank at paras. 27-28. Unlike solicitor-client privilege, it is a more limited exception to the principle of full disclosure: Blank at para. 60.
[69] 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 onus is on the party claiming the privilege to provide sufficient particulars to permit proper assessment of the claim: Gichuru v. Law Society of British Columbia (No. 7), 2010 BCHRT 252.
[70] The Society says that litigation was reasonably anticipated when the investigation was conducted and that the documents were created in the course of that investigation. It submits that the remaining withheld materials form part of the investigator’s work product.
[71] I accept that litigation was a reasonable prospect at the time the investigation commenced. The investigator’s terms of reference expressly refer to the possibility of future litigation or other legal proceedings arising from the complaint.
[72] However, I am not satisfied that the dominant purpose for creating the witness interview notes, interview memoranda, and phone memoranda was the conduct of litigation. 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.
[73] Nor does the fact that the investigator was retained to conduct a “privileged and confidential” investigation, or that certain documents were marked “privileged work product”, establish that the documents are privileged. Privilege is determined by the nature and purpose of the documents, not by the labels attached to them.
[74] I therefore find that the Society has not established litigation privilege over the witness interview notes, interview memoranda, and phone memoranda. Those documents are arguably relevant and must be disclosed.
IV CONCLUSION
[75] Ms. V’s application to limit publication of her personal information is granted, in part. I order that Ms. V be anonymized in all Tribunal decisions issued in relation to this complaint until the complaint is heard on its merits.
[76] Ms. V’s application for disclosure is also allowed in part. I order that by no later than two weeks from the date of this decision, the Society must disclose to Ms. V the witness interview notes, interview memoranda, and phone memoranda prepared by the investigator. I dismiss the balance of the disclosure application.
[77] Once the Society has provided the required disclosure, the submission schedule for the dismissal application will resume. The Tribunal will contact the parties separately with the revised submission schedule.
Shannon Beckett
Tribunal Member
Human Rights Tribunal