The Alberta Court of Appeal recently released its decision in Alberta v. Suncor Energy Inc., 2017 ABCA 221. The court upheld the importance of lawyer-client and litigation privileges, holding that they play a "central role" in the Canadian justice system,. However, where an employee had been fatally injured, the court took a closer look at the factual basis for the employer's claims of privilege over documents that formed part of its investigation into the death.
On April 20, 2014, an employee of Suncor Energy Inc. (“Suncor”)
was fatally injured at a worksite near Fort McMurray, Alberta. The
Alberta Occupational Health and Safety (“OHS”) officers issued a
stop-work order that day. Immediately after the accident, anticipating
litigation, Suncor began an internal investigation and threw a privilege
blanket over all information relating to the investigation. Legal counsel
for Suncor directed the investigation team to segregate all documents and to
endorse all material as “privileged and confidential”.
The Suncor investigation team interviewed witnesses,
recorded statements and collected photographs. On May 5, 2014, OHS issued
a demand under relevant section of the Alberta Occupational Health and
Safety Act (the “Act”) for Suncor to provide copies of the witness
statements, as well as employees’ names and contact information. Suncor
replied and provided the names and contact information of employees but
asserted privilege over the witness statements collected by its investigation
team. Later, nearly a year after Suncor had provided OHS with a
copy of its report on the accident, OHS issued another demand for information
and copies of witness statements, notes, records, photos and other documents
collected by Suncor. Suncor claimed privilege over certain documents
and information. OHS issued an administrative penalty against Suncor.
The province of Albert filed an originating application
seeking an order that Suncor provide the refused materials and allow OHS to
interview Suncor’s internal investigators or at least provide further
particulars about the claims of privilege. At the return of the
application, the judge held that the dominant purpose of Suncor’s
internal investigation was in contemplation of litigation and upheld its claim
for privilege on that basis. The judge ordered Suncor to meet with a
referee who would assess the claims of privilege and provide recommendations to
the court.
Alberta appealed that decision to the Alberta Court of
Appeal.
The Alberta Court of Appeal concluded that the application
judge had erred in finding that the dominant purpose of Suncor’s investigation was
in contemplation of litigation so as to clothe all material “created and/or
collected” during the investigation with legal privilege. However, it also held that the judge had not erred in invoking the referee process under the Alberta Rules of
Court.
The Court of Appeal held that the relevant sections of the Act did
not preclude claims of privilege. After the application judge's decision
was issued, the Supreme Court of Canada clarified the law pertaining to
lawyer-client privilege and litigation privilege in Lizotte v. Aviva
Insurance Company of Canada and in Albert (Information and Privacy
Commission) v. University of Calgary. Those decisions confirmed
the central role of legal privilege in the justice system as well as the legal
and policy reasons behind why privilege must be protected. The Supreme Court held that both litigation privilege and
lawyer-client privilege “cannot be abrogated by inference and that clear,
explicit and unequivocal language is required in order to lift it”.
Lawyer-client privilege attaches to confidential
communications between a client and a legal advisor that are connected to
giving or seeking legal advice. The communication does not have to be in
contemplation of litigation and the privilege is of permanent duration.
Litigation privilege attaches to documents created for the
dominant purpose of litigation. This includes any document created for
the dominant purpose of preparing for related litigation that “remains
pending or may reasonably be apprehended”. The object of this inquiry
is the purpose for which the document was created or came into existence as
distinct from the purpose for which it may have been collected or put to
use.
Accordingly, the Court of Appeal held that if legal
privilege does not cover particular records or information, and the
requirements of the Act apply to those records or information, the question of
whether the Act operates to override any aspect of privilege disappears.
Once the procedure for assessing the contested materials is complete, records
or information sifted out of the scope of privilege will be subject to
consideration under the correct legal interpretation of the Act.
In this case, the appeal judges found that the application judge had erred in finding that the
dominant purpose of the investigation was in contemplation of litigation and
that Suncor created and/or collected documents and material with the dominant
purpose that they would assist in any litigation. It held that a referee
appointed under the Alberta Rules of Court must focus on the dominant purpose
for creating each document as opposed to the purpose for its collection.
Suncor could not simply by having legal counsel declare that
an investigation had been commenced, throw a blanket over all materials “created
and/or collected during the internal investigation” so as to clothe them
with lawyer-client or litigation privilege. The Court of Appeal held that where a workplace accident
has occurred and the employer has statutory duties under the Act and
simultaneously undertakes an internal investigation claiming legal privilege
over all materials derived as part of that investigation, an inquiry is
properly directed to a referee under the Alberta Rules of Court to determine the
dominant purpose for the creation of each document.
Regards,
Blair
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