May 20, 2016

Privilege Claim Over Internal Accident Investigation Succeeds – Despite OHS Enforcer’s Order

The Alberta Court of Queen’s Bench has concluded, in a May 9, 2016 decision, that an employer may claim legal privilege over internal accident investigation materials, shielding them from production to provincial occupational health and safety officers – – even where an order has been issued to produce them.
Facts
In April of 2014, a Suncor employee died following a workplace accident. Suncor was required, under section 18 the Alberta Occupational Health and Safety Act (“OHSA”), to carry out an investigation into the circumstances surrounding the accident.
Following the accident, Suncor began an internal investigation, both for the purpose of complying with the OHSA and to prepare for possible litigation and obtain legal advice.  All documents created for the purposes of the internal investigation were endorsed by Suncor as being privileged and confidential.
Alberta OHS officers issued a demand that Suncor produce documents, including root cause analysis, photos and witness statements obtained during the internal investigation.  The officers also sought to interview the members of Suncor’s internal investigation team.  It was the government’s position that materials and information collected as part of the investigation could not be privileged because Suncor had a statutory obligation to conduct the investigation.
Suncor submitted its statutorily required written investigation report to the Ministry of Labour.  It also produced the names of persons interviewed with respect to the accident, as well as the names and contact information of its internal investigation team.  However, it asserted legal privilege over the balance of information gathered during its internal investigation.  The Ministry imposed a $5,000 penalty on Suncor  and the officers continued to demand production of the other information.
The Ministry sought court orders to compel Suncor to produce the documents over which it had asserted privilege and to compel Suncor’s investigators to submit to interviews by OHS officers.
Decision
In a favourable decision for employers, the Court rejected the government’s position that privilege could not be asserted over information and material collected as part of a statutorily compelled accident investigation.  The Court found that  a single investigation can have a dual purpose – regulatory and litigation – and that this dual purpose does not extinguish the right to assert legal privilege over the documents and information collected as part of the investigation.  Here, Suncor asserted “contemplated litigation” privilege over its internal investigation, and the court agreed Suncor was entitled to claim this litigation privilege notwithstanding the obligation it had to carry out a statutory investigation under the OHSA. The Court did note that the party claiming privilege will have to take deliberate steps to cloak documents and information collected during the investigation with the protection of privilege in anticipation of litigation.
The Court reasoned that denying Suncor’s claim to privilege would prejudice Suncor’s ability to defend itself against any potential civil actions, criminal prosecutions or regulatory claims.  This would defeat the purpose of the privilege.
In addition to determining that privilege could be claimed over the fruits of a dual purpose investigation, the Court confirmed the legal test applicable to claims of privilege.  The Court decided that Suncor’s dominant purpose in carrying out the internal investigation was in contemplation of litigation, which meant that Suncor could assert litigation privilege over any information, documents or records collected during the internal investigation.
The Suncor decision builds on the 2009 decision of the Ontario Court of Appeal in R. v. Bruce Power Inc., which involved an assertion of privilege over an internal investigation report prepared following a workplace accident.  In that case, the report was to be used to provide legal advice to Bruce Power and its employees and for use in the defence of anticipated charges under Ontario’s Occupational Health and Safety Act.  Bruce Power took a number of steps to establish and maintain privilege over its investigation and the report.   Shortly before the start of a trial on charges under the Ontario Occupational Health and Safety Act, the report was obtained by the Ontario Ministry of Labour.
Bruce Power brought a motion for a stay of the proceedings based on the government obtaining the report (the evidence established that the involved officer should have known it was privileged)  and the motion eventually made its way to the Court of Appeal.  The Court decided that the report was covered by solicitor-client privilege and granted Bruce Power’s request for a stay of proceedings, on the health and safety charges. Suncor builds on Bruce Power because, in Bruce Power, the report and the investigation that produced it were not statutorily required.
Significance for Employers
The Suncor decision confirms that an employer can assert legal privilege over investigative information and materials prepared for the dual purposes of complying with regulatory requirements and preparing for litigation.  This may prevent certain documents from being disclosed during the course of a government investigation and subsequent legal proceedings.  It may, therefore, avoid permitting the prosecution to obtain records or information that provide it with an unfair advantage over the employer.
In the hours and days immediately following a serious workplace accident, it is critical that any company undertaking an investigation engage in precautionary measures to ensure that the results of the investigation are covered by privilege.  Such steps may include: involving internal or external legal counsel in requests for the investigation; communicating the privileged nature of the investigation to all members of the investigation team; advising witnesses that information will remain confidential; ensuring that all investigation materials and reports are appropriately marked as privileged and controlled; and ensuring that the dissemination any report is carefully considered by counsel.
Companies that have experienced a workplace accident should contact external counsel immediately to avoid inadvertently taking steps that either extinguish or restrict their entitlement to claim privilege.  If appropriate measures are taken as part of an accident investigation, the decisions in Suncor and Bruce Power confirm that the courts will support employers in asserting properly established privileges that can protect against disclosing information, which could be unfavourable, to government officers and prosecutors.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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