Instructing an Investigator as Counsel: Privilege, Scope Letters and What to Put in Writing

Most of the damage done to an investigative file happens before anyone leaves the office. It happens in the way the investigator was retained, in an instruction given by phone and never written down, and in an assumption that whatever comes back will be privileged because a lawyer asked for it.

None of that is true by default. Privilege attaches to the purpose for which material was created, not to the letterhead on the invoice, and a surveillance product you intend to rely on at trial will be disclosed in some form no matter how the retainer reads. Both are decided at the retainer stage, the one stage counsel fully controls.

Short answer: retain the investigator yourself rather than having the client do it, and put the instruction in a scope letter stating the single question to be answered, the lawful limits, the authorized period and hours, the budget and reporting checkpoints, an express prohibition on contacting the subject or any represented party, evidence handling and retention requirements, and a stop-and-call-me trigger. Litigation privilege protects the product only if it was created for the dominant purpose of the litigation, so work commissioned in the ordinary course, before litigation was reasonably in contemplation, is exposed. Even where privilege holds it is qualified rather than absolute: surveillance is a document, it goes in the affidavit of documents whether or not privilege is claimed, its particulars are answerable on discovery, and substantive use at trial means abandoning the claim and producing the material well beforehand.

This is written from the investigator’s side of the file. It is practitioner orientation, not legal advice, and the authorities move. Confirm the current text of any rule before relying on it.

Who retains whom, and why the answer matters

Counsel retains the investigator and instructs them directly, or the client retains the investigator and forwards the product. The two are not equivalent.

Litigation privilege does not require a solicitor at one end of the communication. The Supreme Court was explicit in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at paragraph 27, that the privilege also contemplates communications between a solicitor and third parties and, for an unrepresented litigant, between the litigant and third parties. Its object is the efficacy of the adversarial process, not the solicitor-client relationship. A client-retained investigator’s report is therefore not automatically outside the privilege.

What changes is how hard the purpose is to prove, and where the file sits.

• Purpose is easier to establish when counsel retains. A retainer signed by counsel, referencing a pleaded issue, on a matter in litigation or in reasonable contemplation of it, is close to self-proving. A client’s own engagement of a vendor it uses routinely invites the argument that the work was ordinary course.
• Possession, control and power follow the retainer. Rule 30.02(1) of the Rules of Civil Procedure requires disclosure of every relevant document in a party’s possession, control or power, privilege claimed or not. A file held by the client sits squarely inside the client’s own obligations, and so do the invoices and interim reports.
• Instruction discipline follows the retainer. Clients give investigators instructions counsel would never give. A single point of instruction mostly removes that risk.

Where the client retained someone before you were engaged, obtain the existing file and the original instructions before writing your own scope letter.

Litigation privilege and the dominant purpose test

The test is settled. In Blank, at paragraphs 59 and 60, the Court declined to depart from the dominant purpose standard, preferring it to a substantial purpose test because litigation privilege is a limited exception to the principle of full disclosure rather than an equal partner of solicitor-client privilege.

Purpose is assessed at creation. The question is why the material was brought into existence, not what use you later put it to. A report generated because a claims department routinely orders surveillance on files of a certain type was created for the ordinary conduct of the business, and forwarding it to counsel afterwards does not change that. The same work, commissioned once litigation was reasonably in contemplation and directed at a pleaded issue, sits on the right side of the line. This is the most common privilege problem in insurer and employer files, and it is avoidable at the front end.

The privilege is time-limited. Blank also held that litigation privilege ends when the litigation that gave rise to it ends, absent closely related proceedings. Unlike solicitor-client privilege it is neither absolute in scope nor permanent in duration.

One related trap: rule 30.1.01(3) deems parties and their lawyers to undertake not to use evidence obtained under the discovery rules for any purpose other than that proceeding. Handing discovery material to an investigator to work a collateral problem breaches that undertaking.

Privilege over surveillance is qualified, not absolute

Under rule 30.01(1)(a) a document includes a sound recording, videotape, film and photograph. Surveillance video is a document, as the Court of Appeal confirmed directly in Iannarella v. Corbett, 2015 ONCA 110, which remains the reference case on how surveillance moves through discovery.

The distinction doing the work is between the recording and the facts in it. The films stay privileged while the claim stands. What they record does not. In Iannarella the Court described the particulars owed on request as the date, time and location of the surveillance, the nature and duration of the activities depicted, and the names and addresses of the videographers. So a party can hold the video and still have to say that the subject was recorded on four specified dates, at named locations, doing described activities, by named investigators.

The obligation survives setting the action down. Rule 48.04(1) stops a party who has set an action down from continuing discovery without leave, but rule 48.04(2)(b) expressly preserves the obligations under rules 30.07 and 30.09.

The timing decision this forces

Rule 30.09 lets a party who maintains privilege use the document only to impeach. Substantive use requires abandoning the claim and producing the material at least 90 days before trial. That is a strategic choice with a hard deadline attached.

Maintain privilege and you keep the material back until cross-examination, limited to impeachment, with the trial judge still holding a voir dire before anything is shown. Abandon it in time and the material becomes available substantively. In Nemchin v. Green, 2019 ONCA 634, the Court confirmed that surveillance disclosed in accordance with the Rules can play a dual role: an excerpt can impeach a witness and then be relied on substantively to show functionality. The admissibility test is the same either way.

Deciding this late is how good surveillance gets excluded. Decide it when you commission the work.

What a scope letter should actually contain

The scope letter will be read back to your investigator on cross-examination. Write it for that audience.

1. The question to be answered. One question, in a sentence, tied to a pleaded issue. “Document the subject’s functional capacity on weekday mornings” is a question. “See what you can find” is not, and it produces a file that looks like a fishing expedition because it is one.
2. The lawful limits, stated expressly. Public vantage points only. No trespass. No entry onto private property by consent obtained on a false premise. No interception of private communications. No pretext contact. Writing these down converts a general expectation into a specific instruction the investigator accepted.
3. The authorized period and hours. Start and end dates, days and hours authorized, and the number of investigators. Open-ended authorization is how a case becomes disproportionate without anyone deciding that it should.
4. Budget and reporting checkpoints. A dollar or hour ceiling, and a defined point at which the investigator reports and takes further instruction before continuing.
5. No contact with the subject or any represented party. State it as an absolute.
6. Evidence handling and retention. Original unedited media, recording media labelled, camera clocks verified against a reference before each assignment, contemporaneous field notes retained, and a stated retention period. Nothing edited, cropped or re-encoded before delivery.
7. A stop-and-call-me trigger. List what must stop the work: the subject appears aware of the surveillance, a third party or police approach the investigator, the subject enters a place where continued observation raises a legal question, a child or other non-target becomes central, or anything happens the investigator did not anticipate. The judgment call should reach counsel instead of being made in a parked car.

A firm that pushes back on any of this is telling you something useful. For how an assignment is staffed against instructions like these, see covert surveillance.

What counsel should never instruct

The professional exposure here runs to counsel, not only to the investigator.

Rule 7.2-6 of the Law Society of Ontario’s Rules of Professional Conduct provides that where a person is represented by a legal practitioner on a matter, a lawyer shall not, except through or with that practitioner’s consent, approach or communicate or deal with the person on the matter, or attempt to negotiate or compromise it directly. Rules 7.2-8 to 7.2-8.2 extend a parallel prohibition to specified people inside a represented corporation or organization, and the commentary forecloses the obvious evasion: a lawyer cannot avoid the consent requirement by closing their eyes to the obvious. Rule 5.3-1 permits seeking information from a potential witness, but is expressly subject to those rules and requires the lawyer to disclose their interest and not subvert or suppress evidence. Rule 6.1-1 requires a lawyer to assume complete professional responsibility for their practice and to directly supervise non-lawyers to whom tasks are assigned. Whatever the contractual characterization of an outside investigator, an instruction routed through an agent is still your instruction.

So the list is short.

• Never authorize a pretext approach to a represented party. Not a phone call, not a doorstep conversation, not a fake survey, not a message on social media. An investigator who offers this as a service is offering you a Law Society problem and a cross-examination of your own witness.
• Never authorize entry onto private property by pretext. Consent obtained by misrepresentation is a trespass problem and an admissibility problem at once.
• Never authorize recording of a conversation the investigator is not party to. Interception of a private communication is an offence under Criminal Code section 184(1), carrying up to five years on indictment. The one-party consent exception in section 184(2)(a) protects a participant, not an eavesdropper. This is why competent surveillance video is captured without audio.
• Never leave the identity question ambiguous. Ontario’s Code of Conduct, O. Reg. 363/07, permits an individual licensee to conceal their identity as a private investigator in order to carry out their duties (section 2(3)). That is not the same as actively misrepresenting yourself to a represented party to extract a statement, and the second is not authorized by the first. Section 2(1)(g) requires licensees to refrain from behaviour that is prohibited or not authorized by law.

Interviewing a witness who is not a represented party is legitimate work. Instruct it as interview work with its own written parameters rather than folding it into a surveillance mandate.

Reports that survive cross-examination

Assume the report will be read line by line by someone whose job is to find the gap.

• Contemporaneous notes, made at the time, retained, and consistent with the report. A report written from memory three days later is a target.
• Unedited original media, delivered whole. Excerpts are for the courtroom, and even then the trial judge may want to see what came immediately before and after. In Iannarella the Court noted the concern that careful editing might trim the video just before or after a revealing moment.
• Accurate timestamps, with clocks verified against a reference before the assignment and the verification recorded. A timestamp nobody can vouch for is worse than none.
• Continuity, documented from the recording device to the exhibit, including who handled the media and when.
• Observation stated separately from inference. “Subject carried a bag in his right hand from the door to the vehicle, approximately twelve metres” is an observation. “Subject showed no sign of the claimed impairment” is an inference. An investigator who writes conclusions into the observation record has handed the other side the argument that the file was written toward a result.

The same standard applies to non-surveillance work. A locate or skip trace report should state what was searched, when, from what source, and what it returned, so the finding can be tested rather than taken on faith.

The investigator as a witness

If the surveillance is going in, someone testifies. The investigator testifies as a fact witness, to what they personally observed and did. They are not an expert and should not be led toward opinion about the subject’s condition, capacity or credibility.

In Iannarella the Court described a two-part gatekeeper function carried out in a voir dire: first, satisfying the trial judge that the video is a fair and accurate depiction, including technical matters such as distortion and image speed, with that information capable of being led through the videographers, whom the defence should make available if necessary; second, ensuring that the use of the video will not impair trial fairness.

Preparation follows. The investigator must be able to account for every gap in the record, including why they stopped recording and where they were; justify the vantage point on each occasion; speak to the equipment, the clock verification and the handling of the media without reconstructing it on the stand; and say plainly what they did not see, because they will be asked. They should have re-read their notes and viewed the whole of their own footage, not the excerpt.

A firm that treats testimony as an inconvenience rather than the endpoint of the work produces a witness who cannot do these things. That is a selection decision, not a voir dire problem.

What to ask before you retain a firm

• Both licence numbers. The individual and the agency are licensed separately. Section 6 of the Private Security and Investigative Services Act, 2005 prohibits acting as a private investigator without the appropriate licence and a connection to a licensed business; section 7(1) prohibits selling investigative services without the appropriate licence. Under section 34(1) an investigator must carry the licence, identify themselves on request, and produce it on request. See how to verify your Ontario investigator is licensed.
• Insurance. Section 30 prohibits holding a business licence without insurance in the prescribed kinds and amounts. Ask for the certificate.
• Who is actually doing the work, including whether any of it is subcontracted. If it is, the same questions apply to the subcontractor.
• Their position on pretext contact. Where the party is represented, the correct answer is a flat refusal, without hedging.
• Their evidence handling protocol, and whether the assigned investigator will be made available to testify.
• A redacted sample report. You will learn more from how observation and inference are separated than from anything on a website.

If you are weighing whether the work is appropriate at all, our overview of the legal position on hiring an investigator in Ontario covers the ground before the retainer stage.

What to do next

Move the retainer to counsel if it currently sits with the client. Draft a standard scope letter you can adapt per file, with the seven elements above, and have the investigator acknowledge it in writing. Then decide at the outset, not 100 days before trial, whether you intend to use the product substantively or only to impeach, because rule 30.09 turns that into a deadline whether or not you have thought about it.

That takes an hour. Getting it wrong costs the evidence.

To scope a file before instructing, contact us or use Assign a Case. We would rather define the question with you first than deliver a file you cannot use.

This article is general information about investigative practice in Ontario, not legal advice. Laws change and every situation is different. For advice about your specific circumstances, consult a licensed Ontario lawyer or contact a licensed investigator directly.

Frequently asked questions

Should counsel retain the investigator, or should the client?

Counsel retaining the investigator directly is the cleaner structure. Litigation privilege protects material created for the dominant purpose of litigation, and a retainer signed by counsel, with a scope letter tied to a defined issue in the pleadings, makes that purpose easy to prove. It also keeps the working file in counsel’s hands rather than the client’s, where it becomes part of the client’s own documentary discovery obligations.

Is surveillance protected by litigation privilege in Ontario?

Usually, but only in a qualified way. Surveillance video is a document under rule 30.01(1)(a) of the Rules of Civil Procedure and must be disclosed in the affidavit of documents whether or not privilege is claimed. Privileged surveillance is listed in Schedule B. The recording itself stays privileged unless the claim is abandoned, but the facts it records are answerable on discovery.

What surveillance particulars have to be disclosed on discovery?

The particulars that must be given on request include the dates, times and locations of the surveillance, the nature and duration of the activities recorded, and the names and addresses of the investigators who did the work. The Court of Appeal set this out in Iannarella v. Corbett, 2015 ONCA 110. The films can remain privileged while the facts in them are still disclosed.

Can an investigator contact the opposing party to get a statement?

Not where that party is represented. Rule 7.2-6 of the Law Society of Ontario’s Rules of Professional Conduct prohibits a lawyer from approaching, communicating or dealing with a represented person on the matter without the other legal practitioner’s consent, and a lawyer cannot achieve through an agent what the rule forbids directly. An investigator who offers a pretext approach to a represented party should not get the file.

What should a scope letter to an investigator contain?

One defined question to be answered, the lawful limits of the work, the authorized period and hours, a budget with reporting checkpoints, an explicit instruction not to communicate with the subject or any represented party, evidence handling and retention requirements, and a stop-and-call-me trigger listing the circumstances in which the investigator must pause and contact counsel before continuing.

How does counsel confirm an Ontario investigator is licensed?

Both the individual and the agency need licences under the Private Security and Investigative Services Act, 2005. Section 6 covers the individual, section 7(1) covers the business selling investigative services, and section 30 requires the licensed business to carry insurance. Under section 34(1) an investigator must carry the licence and produce it on request. Ask for both licence numbers and the insurance certificate before the retainer is signed.