Maintaining Privilege Over An Employer’s Internal Accident Investigation

October 2016

Article by: Alissa Demerse

Previously printed in the LexisNexis Labour Notes Newsletter.

A recent decision of the Alberta Court of Queen’s Bench underscores the importance of taking early steps to retain legal counsel to assist employers with serious workplace accidents. In Alberta v. Suncor Energy Inc, 2016 ABQB 264, certain documents and records created or collected during an accident investigation were protected by litigation and solicitor-client privilege where legal counsel made decisions with respect to the accident investigation within hours of the event.

On April 20, 2014, an employee of Suncor was involved in a fatal workplace accident at one of the company’s facilities near Fort McMurray, Alberta. The RCMP and Alberta Ministry of Labour Occupational Health and Safety Division commenced an investigation into the accident.  Suncor also commenced its own internal accident investigation.

Suncor had a statutory obligation to conduct the investigation pursuant to s. 18(3) of the Occupational Health and Safety Act, R.S.A. 2000, c. O-2 (the “OHS Act”), but the company also reached the conclusion that litigation was a real and distinct possibility in all of the circumstances.  Suncor quickly determined that a privileged and confidential investigation would be needed to obtain the necessary information required to provide the company with proper, fully informed legal advice.

Suncor complied with its statutory obligation to produce a report regarding the accident, including preventative measures adopted. It, however, refused to produce to the Ministry the other materials arising from its internal investigation such as witness statements and the root cause analysis conducted by the company’s internal investigation team.  Suncor claimed litigation privilege over its internal investigation.  It also claimed solicitor-client privilege as the investigation was commenced and proceeded on the basis of third party legal advice.

The Court found the case law to be clear that litigation privilege extends to regulatory proceedings. It adopted the reasoning and conclusion of the BC Supreme Court in Thomson v. Berkshire Investment Group Inc., 2007 BCSC 50 and found that litigation privilege could be claimed in the circumstances:

[T]he fact that a single investigation has a dual purpose — regulatory and litigation — does not ipso facto extinguish nor abrogate a claimant’s right to legal privilege, where the claimant has been able to establish that the dominant purpose for conducting the investigation was in contemplation of litigation.

To deny Suncor litigation privilege over the investigation because of a statutory obligation to undertake that investigation would prejudice the company’s right to defend itself against potential legal action and would defeat the policy justification and purpose of the privilege.

The Court then turned to determine what Suncor’s dominant purpose was in conducting the accident investigation. The Court cited Talisman Energy Inc. v. Flo-Dynamics Systems Inc., 2015 ABQB 561, in which case it was held that affidavit evidence could be sufficient to establish that potential litigation was the dominant purpose for an investigation.  Suncor’s affidavit evidence confirmed that the dominant purpose of the investigation was to assist in pending litigation.  There was no evidence to the contrary adduced by the Ministry.

The Court noted that this conclusion was supported by the fact that Suncor’s legal counsel requested a privileged and confidential investigation based on an assessment that litigation was a real and distinct possibility and made that request within hours of the accident. Limited use immunity provisions in ss. 18(5) and 19(5) of the OHS Act also indicated that the drafters of the legislation intended to extend some form of privilege to investigations and reports.

Of note, the Court remarked:

This Court is equally alert to the principle that “where a lawyer exercising legal knowledge, skill, judgment and industry has assembled a collection of relevant copy documents for his brief for the purpose of advising on or conducting anticipated or pending litigation he is entitled, indeed required, unless the client consents, to claim privilege for such collection and to refuse production…

In terms of solicitor-client privilege, the Court ruled that it remained unclear as to what the scope of the communications regarding the investigation between Suncor and its lawyers was at the time of the investigation. The company’s claim of litigation privilege also hinged on the determination of what investigative materials were created for the dominant purpose of supporting the contemplated litigation.  Accordingly, the Court ordered that an independent referee undertake an assessment of which particular documents or records were created during the period of confidential communication between Suncor and its lawyers, as well as which documents were created for the dominant purpose of supporting litigation.

This case strengthens and confirms an employer’s ability to keep an internal accident investigation privileged even when faced with a statutory obligation to produce an investigation report and a regulator’s demands for production of the internal investigation materials. Prevention of workplace accidents is always the key to safe workplaces but, when accidents do occur, the involvement of legal counsel at an early stage can prove to be invaluable to an employer.

This case is currently under appeal to Alberta’s Court of Appeal.