Maintaining Privilege Over An Employer's Internal Accident Investigation

A recent decision of the Alberta Court of Queen's Bench underscores the importance of taking early steps to retain legal counsel to assist employers with serious workplace accidents. In Alberta v. Suncor Energy Inc, 2016 ABQB 264, certain documents and records created or collected during an accident investigation were protected by litigation and solicitor-client privilege where legal counsel made decisions with respect to the accident investigation within hours of the event.

On April 20, 2014, an employee of Suncor was involved in a fatal workplace accident at one of the company's facilities near Fort McMurray, Alberta. The RCMP and Alberta Ministry of Labour Occupational Health and Safety Division commenced an investigation into the accident. Suncor also commenced its own internal accident investigation.

Suncor had a statutory obligation to conduct the investigation pursuant to s. 18(3) of the Occupational Health and Safety Act, R.S.A. 2000, c. O-2 (the "OHS Act"), but the company also reached the conclusion that litigation was a real and distinct possibility in all of the circumstances. Suncor quickly determined that a privileged and confidential investigation would be needed to obtain the necessary information required to provide the company with proper, fully informed legal advice.

Suncor complied with its statutory obligation to produce a report regarding the accident, including preventative measures adopted. It, however, refused to produce to the Ministry the other materials arising from its internal investigation such as witness statements and the root cause analysis conducted by the company's internal investigation team. Suncor claimed litigation privilege over its internal investigation. It also claimed solicitor-client privilege as the investigation was commenced and proceeded on the basis of third party legal advice.

The Court found the case law to be clear that litigation privilege extends to regulatory proceedings. It adopted the reasoning and conclusion of the BC Supreme Court in Thomson v. Berkshire Investment Group Inc., 2007 BCSC 50 and found that litigation privilege could be claimed in the circumstances:

[T]the fact that a single investigation has a dual purpose — regulatory and litigation — does not ipso facto extinguish nor abrogate a claimant's right to legal privilege, where the claimant has been able to establish that the dominant purpose for conducting the investigation was in contemplation of litigation.

To deny...