On October 5th, Justice Moir of the Nova Scotia Supreme Court made the following comment about litigation privilege and internal investigations:
Chrusz cannot stand for the proposition that once an investigation finds wrongdoing, and litigation is anticipated, litigation privilege attaches. That would be contrary to established principle: receiving legal advice about the litigation, or aiding its conduct, has to become the dominant purpose of the investigation.
Employers who investigate an employee for wrongdoing will have termination of employment in mind. Employers who have termination in mind will often reasonably anticipate litigation. However, such investigations are usually for the dominant purposes of getting to the bottom of the circumstances, and deciding what to do about the person’s employment once the facts are known.
His Honour’s judgment is otherwise a fairly fact-specific treatment of various privilege claims.