Case Summary: Alberta v Suncor Energy Inc.

5. PRACTICE ISSUES

   A. Documents generated for an internal investigation of an accident can be protected by litigation privilege if they were created for the dominant purpose of litigation but that does not mean that every document on the investigation file is privileged – each document must be assessed individually on the issue of privilege.

   Alberta v Suncor Energy Inc, 2017 ABCA 221, per Manderscheid, J. [4261]

1. FACTS AND ISSUES

   On April 20, 2014, an employee of Suncor was involved in a fatal workplace accident in Fort McMurray, Alberta. Suncor reported the fatality to the Ministry of Labour and launched an internal investigation into the incident. Shortly after, the Ministry of Labour issued demands for production of information collected during the investigation in accordance with the provincial Occupational Health and Safety Act, R.S.A. 2000, c O-2 (the "OHSA").

   Suncor provided the Ministry of Labour with a report of its investigation, and produced materials that pre-dated or coincided with the incident. However, Suncor asserted privilege over all other materials created or collected in the course of its internal investigation.

   The chambers judge held that the dominant purpose of Suncor's internal investigation was in contemplation of litigation, which meant all material "created and/or collected" during the investigation under the veil of legal privilege.

   This was an appeal by the provincial Crown from an order referring Suncor's privilege claim to a referee.

   Issues:

   Did the chambers judge err in finding that the dominant purpose of the investigation was in contemplation of litigation? Did the chambers judge err in finding that the documents were sufficiently described to allow an assessment of the privilege claims? Did the chambers judge err in referring the assessment to a referee after making a finding about the dominant purpose of the investigation? Did the chambers judge err by failing to grant Alberta the right to make submissions before the referee? II. HELD: Appeal allowed in part.

   The chambers judge erred by accepting a claim that all documents created or collected in the course of an internal investigation were privilege without conducting a record-by-record analysis.

3. DECISION

   A. Did the chambers judge err in finding that the dominant purpose of the investigation was in contemplation of litigation?

   1. The chambers judge was held to have erred in finding that because the investigation itself was carried out in anticipation...