Seeking legal advice not only allows an employer to ensure that they are conducting a proper accident investigation, but will also be critical in preserving legal privilege – meaning a document is protected as confidential in a legal process and shielded from adverse parties.
On May 9, 2016 the Court of Queen's Bench of Alberta released a decision finding that legal privilege attached to an employer's investigation of a workplace accident. The result was that the Company would not have to produce to the Alberta Ministry of Labour documents that were created during the investigation.
On the facts, a fatal electrocution had occurred at the worksite of a large energy corporation. The Company then sought assistance from both internal and external lawyers, and commenced an investigation after being advised to do so. When asked by the Ministry to produce copies of witness statements and interviews, the Company refused, citing legal privilege. After being fined a $5,000 administrative penalty for its refusal, the Company made an application for the Court to decide the issue – asserting legal privilege over the documents.
The Court found that while the Company had an obligation to carry out an investigation and prepare a report under section 18(3) of the Alberta Occupational Health and Safety Act, that obligation did not necessarily preclude the investigation documents from being claimed as privileged. In fact, the Company could comply with section 18(3) while still claiming privilege over the witness statements and interviews because, despite the statutory obligations, the dominant purpose of the Company's investigation was to defend against impending litigation (including possible criminal or regulatory charges).
The Court found it important that the Company sought legal advice within a few hours of the accident and that the Company conducted its investigation based on the structure prescribed by its lawyers. It was also significant that the Company followed its lawyers' instructions to ensure that all documents were endorsed as being "privileged and confidential".
Without the advice and involvement of the Company's lawyers at an early stage, the Company could have been required to produce the investigation documents to many potential adverse parties, losing legal privilege.
This case reminds us that employers should consider early involvement of legal counsel in their occupational health and safety investigations, alongside consulting agencies and internal personnel, to use legal privilege to the greatest extent possible.
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