Alberta Employers Cannot Claim 'Blanket' Privilege On Materials Following A Workplace Accident

The Alberta Court of Appeal recently released its decision in Alberta v Suncor Inc., 2017 ABCA 221, which clarified an employer's ability to claim privilege over information and materials that are created or collected during an internal investigation following a workplace accident. The Court of Appeal held that while an employer can assert litigation and\u002for legal privilege over an accident investigation or certain parts of it, employers cannot "throw a blanket over all materials" created or collected during the accident investigation and claim that all such materials are privileged.

Background

On April 20, 2014, an employee of Suncor was involved in a fatal workplace accident at Suncor's facility near Fort McMurray, Alberta. Alberta Occupational Health and Safety (OHS) officers issued a stop-work order that day. Immediately after the workplace accident, anticipating litigation, Suncor began an internal investigation and threw a privilege blanket over all information pertinent to its investigation.

From May 2014 onward, OHS issued various demands for the release of information under Alberta's Occupational Health and Safety Act (OHSA). On November 14, 2014, in compliance with section 18 of OHSA, Suncor provided OHS with a report of its investigation. Suncor also produced materials that pre-dated or coincided with the workplace accident but asserted solicitor-client privilege and\u002for litigation privilege over materials created or collected in the course of its internal investigation after the accident.

Her Majesty the Queen in Right of Alberta (Alberta) filed an originating application on February 26, 2016, 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.

Court of Queen's Bench of Alberta Decision

The Court of Queen's Bench of Alberta considered whether Suncor was entitled to claim privilege over the information collected during its internal investigation and whether the documents and other records created or collected during Suncor's internal investigation were privileged. The chambers judge noted that while Suncor had a statutory obligation under the OHSA to conduct an investigation and prepare a report on the accident, that obligation did not foreclose or preclude Suncor's entitlement to litigation privilege. The chambers judge found that as Suncor's internal investigation was carried out in...