Internal Investigations And Privilege: The Alberta Court Of Appeal Weighs In

The documents and records of an internal investigation into a workplace accident may be privileged notwithstanding a statutory obligation to carry out an investigation and prepare a report, the Alberta Court of Appeal recently confirmed in Alberta v Suncor Energy Inc, 2017 ABCA 221 [Suncor]. However, extending privilege to such records requires a document-by-document examination of the purpose for creating each.

Documents that are privileged do not have to be disclosed to the other side in a lawsuit or in a freedom of information response. Several different types of privilege can apply to protect records created or collected during an internal investigation, the most common of which are litigation privilege and legal advice privilege. Litigation privilege covers records created for the dominant purpose of existing or contemplated litigation, while legal advice privilege attaches to communications between lawyers and clients made for the purpose of obtaining legal advice.

In Suncor, an employee was killed in a workplace accident. Suncor immediately reported the incident pursuant to the Occupational Health and Safety Act (OHSA) and commenced an internal investigation under the direction of in-house counsel...