Occasionally regulatory investigators gathering evidence come across solicitor-client communications. Typically, but not always, these are communications between a registrant and their lawyer. Handling such communications appropriately is essential to preventing the disruption of the investigation.
A BC court provided valuable guidance for regulatory investigators in British Columbia College of Nurses and Midwives v Lemay, 2025 BCSC 1000 (CanLII). The College was investigating Lemay for the unauthorized practice of midwifery. Lemay had breached previous injunctions and had even served five months in jail. The College obtained a court order permitting it to search Lemay’s home. A box of documents seemed to contain some information covered by the court order and was removed without close scrutiny of its contents. A private investigation firm took custody of the box of documents and indicated to the investigator that some of the documents were from Lemay’s lawyers. Despite this, the investigator reviewed the contents of the box briefly and copied one document related to the investigation. The investigator indicated that they did not notice any privileged documents. The box of documents was then returned to Lemay’s counsel.
Lemay argued that the investigator should be removed from the investigation (and that the investigation itself should be halted) because the investigator had breached solicitor and client confidentiality. While the Court had some concerns about the investigator’s handling of the documents, it found that the College had rebutted the presumed prejudice to Lemay. The Court accepted the evidence that the investigator had not reviewed the privileged documents and that, in any event, the documents appear to have had minimal relevance to the current investigation.
From the Court’s analysis, the following guidance for investigators may minimize the risk of disrupting investigations:
- Investigators should be trained to be alert to the possibility that they may come across solicitor and client communications. That risk may be greater in certain contexts, such as where the investigator is obtaining documents unannounced in locations where the person is likely to store privileged documents (e.g., in a home office).
- It is preferable, where feasible, to conduct a preliminary screening of documents on location rather than simply removing entire boxes, filing drawers, or computer files to review later. Once privileged documents are removed, it is more difficult to establish that they were not read.
- If apparently privileged documents are located, they should be immediately segregated from the non-privileged documents in a secure manner. If it would not compromise the investigation, they can be immediately returned to the person who is the subject of the investigation. If it would compromise the investigation (e.g., other relevant and non-privileged documents are mixed in with the privileged documents), the regulator should retain an independent lawyer to go through them to separate out privileged documents from other documents that are potentially relevant and not privileged.
- Once privileged documents are located in a box, cabinet, or file, the regulator should consider retaining an independent lawyer to go through the remaining documents to ensure that there are no additional privileged documents present.
- Anyone accessing potentially privileged documents should record what triggered their concern that the document might be privileged (e.g., the name of the file folder, the letterhead of the person’s lawyer), what else they saw, if anything, (including, where applicable, a statement that they did not see anything else) and how they securely segregated and returned the privileged document.
Ensuring all investigators are aware of the issue and know how to respond appropriately will help avoid disruptive legal challenges and allow a regulator to advance the investigation appropriately.