Authors: John Agioritis, Christina Kerby and Carolyn Wilson
A recent Alberta Court of Appeal decision could have important consequences for the way legal privilege operates and when it can be claimed in the context of OHS investigations.
The decision in Alberta v Suncor Energy Inc., 2017 ABCA 221 involved an investigation arising out of a fatal workplace accident at a Suncor Energy Inc. (“Suncor”) facility in Alberta. In particular, at the behest of Suncor legal counsel, Suncor’s HSE employees immediately undertook an internal investigation of the accident (the “Suncor Investigation”) in accordance with its statutory obligations under s. 18(3)(a) of the Occupational Health and Safety Act, RSA 2000, c O-2 (the “OHS Act”). Alberta’s Occupational Health and Safety (“OHS”) officers also initiated their investigation on the same day.
Throughout the Suncor Investigation, documents were marked as privileged and confidential on the basis that “litigation was a real and distinct possibility” and a thorough investigation was required for the purposes of fulsome legal advice.
In the course of their investigation, OHS officers requested production of certain documents, pursuant to s. 19 of the OHS Act, including notes, photos, videos and witness statements with respect to the incident.
Suncor refused to produce copies of the witness statements and interviews obtained during the Suncor Investigation, claiming legal privilege (the “Refused Information”).
Notwithstanding this refusal, both the Suncor Investigation and the OHS officers’ investigations continued. Several months later, OHS officers issued a demand for Suncor “to investigate the Accident and prepare a report that includes preventive measures adopted.” Suncor prepared and submitted its report to OHS.
OHS then submitted a new demand for a broader range of documents, including:
- a list of names and contact information of all persons who gave statements or were interviewed by or on behalf of Suncor in respect of the accident;
- copies of all witness statements and interviews taken with respect to the accident;
- a list of names and contact information for all persons who were involved in the investigation process, either directly or indirectly, on behalf of Suncor; and
- copies of all notes, records, photos, videos, documents, root cause analysis taken or collected by Suncor’s internal investigation team.
Suncor produced the names of its interviewees and the names and contact information of the persons conducting the Suncor Investigation, but maintained legal privilege over the remainder of the documents requested.
The Government of Alberta (“Alberta”) rejected the privilege claim, asserting that legal privilege does not apply where Suncor’s dominant purpose in carrying out the investigation was to meet statutory requirements, and not to prepare for potential litigation.
Alberta therefore took the position that the investigation materials should be disclosed. Following requests for particulars, Suncor produced a list of 1655 records in eight categories over which they asserted litigation privilege and solicitor-client privilege. Alberta took the position that the descriptions were insufficient to allow an assessment of the legal privilege claim.
An application was brought to deal with Suncor’s privilege claims. The chambers judge held that there could be dual purposes to an investigation (e.g. statutory compliance and preparation for litigation). Here, the dominant purpose of the Suncor Investigation was in contemplation of litigation. Therefore, Suncor was entitled to claim litigation privilege over the documents it had “created and/or collected” during its internal investigation, regardless of the statutory obligation under the OHS Act. The chambers judge then appointed a referee to hear Suncor’s submissions and assess whether it had provided sufficient justification for its claims of privilege, on the basis of the existing descriptions.
On appeal to the Alberta Court of Appeal, the Court found that the chambers judge had correctly concluded that statutory obligations to conduct investigations, such as those set out in the OHS Act, do not preclude legal privilege.
However, the chambers judge was incorrect in his conceptualization of legal privilege and the assessment of Suncor’s legal privilege claims in a variety of ways.
The Court of Appeal found that the chambers judge erred in finding that the dominant purpose of the Suncor Investigation was in contemplation of litigation, thereby concluding that all documents created or collected for the investigation were protected by privilege. This formulation of the legal privilege was “overbroad and in error” in that it would extend privilege to every document in Suncor’s investigation file, including documents collected that pre-dated the incident.
Instead, following Canadian Natural Resources Limited v ShawCor Ltd., 2014 ABCA 289 at para 87, 376 DLR (4th) 581, the Court of Appeal held that litigation privilege should be examined on a document by document (or group of like documents by group of like documents) basis.
The Court of Appeal also emphasized that solicitor-client privilege and litigation privilege cannot be established merely by having legal counsel declare that an investigation has commenced, thereby throwing a blanket over all materials “created and/or collected during the internal investigation” or “derived from” the internal investigation.
Rather, the purpose of the creation of the document remains the same whether or not legal counsel is or becomes involved:
 First, ShawCor requires that, under the dominant purpose test, the inquiry must focus on the purpose for preparing or creating the material, not the purpose for obtaining it. Second, it is necessary for the referee to examine each of the contested documents or bundle of like documents to determine whether or not they meet the test of legal privilege. In doing so, it is necessary to apply a legal definition of the claimed solicitor-client privilege or litigation privilege.
The Court of Appeal also concluded that the chambers judge erred in finding that Suncor sufficiently described the documents to allow for assessment of the privilege claims and by not allowing Alberta the right to make submissions before the referee in order to argue its case about how the documents were described. The parties were therefore sent before a referee to determine whether the Refused Information is or is not legally privileged.
Overall, the Alberta Court of Appeal makes it clear that statutory obligations to conduct incident investigations under the OHS Act do not preclude claims of legal privilege. However, one cannot simply throw a blanket of legal privilege over all documents found or created in an investigation simply by involving legal counsel.
Rather, legal privilege must be claimed and justified for each document or group of like documents. In particular, parties must describe the documents with sufficient particularity to indicate the basis for their privilege claim. An assessment of the claim will then be conducted on a “document by document” or “group of like documents” basis.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.