Maintaining the privilege of a document is a fundamental aspect of any litigation. The Canadian legal system is premised on the search for truth, which – by default – requires parties to disclose relevant documents to one another in the course of litigation. This is the case in traditional civil actions and generally so for other similar adjudicative processes.
In general, the courts recognise that privileged documents need not be disclosed in the course of litigation if they are 'privileged'. This is crucial to the parties' ability to obtain legal advice in anticipation of and during litigation.
Legal privilege is asserted in many ways, most commonly:
- solicitor-client privilege, which attaches to communications between a client and a lawyer related to seeking or giving legal advice; and
- litigation privilege, which applies to documents created for the dominant purpose of litigation.
Privilege is of fundamental importance when anticipating and conducting litigation. However, the scope of privilege is often overemphasised. In Alberta v Suncor Energy Inc the Alberta Court of Appeal issued a reminder to employers that simply declaring that an investigation has begun and throwing a privilege 'blanket' over all materials is not sufficient to protect them from disclosure.
In April 2014 a Suncor employee was fatally injured at a worksite near Fort McMurray. The same day, Alberta Occupational Health and Safety (OHS) issued a stop-work order. Anticipating litigation, Suncor shortly began an internal investigation of the incident. An investigation was also required under the Alberta Occupational Health and Safety Act. Legal counsel directed the investigation team to segregate the investigation documents and endorse all of the material as privileged and confidential.
From May 2014 the OHS issued several demands for production of information under Section 19 of the Occupational Health and Safety Act. Suncor produced materials that pre-dated or coincided with the accident on the basis that these could not have been prepared in contemplation of litigation. Suncor claimed solicitor-client privilege or litigation privilege over the materials created or collected during its internal investigation and produced a list of 1,655 records bundled into eight categories over which it asserted privilege.
In February 2016 the crown sought an order from the court for Suncor to provide the records that it had refused to produce.
The chambers judge determined that, in theory, it was possible for Suncor to demonstrate that the dominant purpose of its investigation was litigation. That was the case notwithstanding the fact that Suncor was required to conduct an investigation under the Occupational Health and Safety Act.
The judge also accepted Suncor's evidence that the dominant purpose of the investigation was litigation. However, given the volume of documents, the judge found that he could not determine whether each document was protected by privilege. He referred this assessment to case management counsel to act as referee and provide recommendations to the court.
Alberta appealed the decision.
The Court of Appeal agreed that Suncor could still claim privilege over investigation materials, regardless of the fact that the investigation was mandated by the Occupational Health and Safety Act.
However, the agreement stopped there. The court found that the judge's formulation of legal privilege was overbroad. Even if the dominant purpose of the internal investigation as a whole was in contemplation of litigation, it did not follow that every document created or collected during the investigation was also clothed in privilege.
The court highlighted that the mere fact that a lawyer was involved was not "automatically controlling". The purpose behind the creation of a record does not change simply because it is forwarded to or through in-house counsel, nor because in-house counsel directs that further investigation records should come to him or her.
Further, the court held that the judge had erred in finding that the documents were adequately described in Suncor's list. Suncor had asserted both solicitor-client and litigation privilege over nearly all of the documents that it refused to produce. Although documents are frequently covered by both forms of privilege, Suncor was required to distinguish which form of privilege applied to each document independently.
To support a claim of solicitor-client privilege, Suncor had to describe the documents in a manner that indicated communication took place between the lawyer and client related to seeking or receiving legal advice. To support a claim of litigation privilege, Suncor had to describe documents with enough particularity to indicate whether the dominant purpose for their creation was in contemplation of litigation. The court also held that fairness required that both parties have the opportunity to make submissions before a referee assessing privilege.
The decision is an important reminder to employers that if privilege is asserted, it must be backed up. Employers should be aware of the following principles when conducting workplace investigation:
- Educate early – employees should be briefed as early as possible on the meaning of 'privilege' and the types of record to which it may attach. For example, it should not be assumed that simply copying a lawyer on correspondence is sufficient to clothe a document in privilege.
- Limit the team – when an investigation is underway, the team conducting the investigation should be as narrow as possible. Once documents are disseminated more broadly, there is a risk that their privilege will be considered to have been waived.
- Involve legal counsel – if there is an intention to claim privilege over the findings of an investigation, involving external legal counsel is a prudent strategy. For example, counsel can assist in developing policies and best practices for the investigation, and in retaining external experts or providing advice on the path forward.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
For further information on this topic please contact Hannah Roskey or Katie Clayton at Fasken Martineau DuMoulin LLP by telephone (+1 403 837 0610) or email (firstname.lastname@example.org or email@example.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.