With its decision this week in Alberta v. Suncor Energy Inc, 2017 ABCA 221, the Alberta Court of Appeal has considered and clarified the application of solicitor-client privilege and litigation privilege to incidents under Alberta's Occupational Health and Safety Act (OHSA).
This case involved a fatal workplace incident at a Suncor location near Fort McMurray in 2014. Hours after the incident occurred, the employer initiated an internal investigation and, upon instructions of in-house counsel, labelled all information pertaining to the internal investigation as privileged and confidential. Of course, under OHSA, employers are required to conduct post-incident investigations, prepare reports and provide OHS officers with access to the workplace and employees so that they may conduct their own investigation. Here, the employer refused to provide materials that were collected or created after their internal investigation began, claiming solicitor-client and litigation privilege. The employer asserted that the dominant purpose for the investigation was the contemplation of litigation and not its OHSA obligations. The chambers judge agreed with this position but held that all materials created and collected during a post-incident investigation could be protected by privilege where it could be shown that the primary reason for the investigation truly was the anticipation of litigation. In order to determine this, the records were to be given to a referee who, after hearing the employer (alone, without the presence of OHS), would decide on the application of privilege to each document.
This would have permitted the employer to throw a blanket of privilege over all of the materials that were created and/or collected in the course of their internal investigation, allowing them to withhold physical evidence, notes, records, witness statements, documents, videos and photographs of the incident from Alberta's OHS Department. This was a significant, albeit short lived, victory for companies as it expanded and reinforced the ability to assert privilege over internal investigations and potentially shield companies from liability, fines and litigation.
Upon appeal by Alberta OHS, the Court of Appeal did confirm that litigation privilege and solicitor-client privilege are central to our justice system and that neither can be trumped through application of the OHSA. However, they held that the decision by the chambers judge was overly broad and thus in error. The Court of Appeal explained that even though the main purpose of the internal investigation as a whole was in contemplation of litigation, it does not follow that every document created or collected in the course of the investigation also falls under that blanket of privilege without first being examined. The nature of the legal privilege claimed must be independently distinguished and proven for each document or bundle of like documents. The Court also noted that it was an error to permit only one party, the employer, to appear before the referee to make arguments as to the applicability of privilege to each document. The Court gave specific directions on that appearance before the referee.
The Court of Appeal's ruling makes it clear that while privilege can be asserted even in the context of mandatory disclosure under OHSA, care should be taken in providing detailed reasons as to why (and what kind of) privilege is asserted. Blanket assertions of privilege won't suffice.
This case also demonstrates the importance of seeking and obtaining legal advice following a workplace incident. Field Law's Labour and Employment Group provides a 24 hour Emergency Response Service to ensure that your company and your people get real assistance to deal with the maze of real problems that happen after a serious workplace accident.
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