Safety incidents: the right to remain silent versus the obligation to speak

January 29, 2017 0 COMMENTS

by Deanah Shelly

What if this happens at your Canadian facility: One of your employees witnesses a workplace incident. Soon, enforcement officers are on-site investigating the incident. They may be police officers, health and safety inspectors, or environmental officers. One of the investigating officers asks the employee to assist and provide a witness statement. What should the employee do? What are the employee’s rights?

This split-second decision can have long-term and far-reaching legal implications for that employee, the employee’s coworkers, and your organization. Employees in such a situation might risk being charged with obstructing justice or inadvertently providing evidence to implicate themselves or others.

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Investigations by lawyers: Privileged, or not privileged, that is the question

January 10, 2016 0 COMMENTS

by Monique Orieux

In Canada, an employer may retain a lawyer to conduct a workplace investigation, particularly where the issue under investigation is of a sensitive nature. One reason for doing so is to attempt to keep the investigator’s notes, supporting documents, and final report from being disclosed to a third party as privileged. However, privilege is not a guarantee.

In two preliminary arbitration decisions from last year—one from Ontario and one from British Columbia—employers were ordered to disclose the investigating lawyer’s report and supporting documents to the union. These decisions illustrate the importance of taking care to preserve solicitor-client and/or litigation privilege at the time a lawyer-investigator is retained, during the investigation process, and thereafter. read more…