Alberta's Highest Court Clarifies OHS Law: Privilege Must Be Proven

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...