In a recent decision of the Alberta Court of Queen’s Bench, Alberta v Suncor Energy Inc, 2016 ABQB 264, the Court confirmed that even though there is a statutory obligation under the Occupational Health and Safety Act ("OHS Act") to conduct an investigation and prepare a report following a workplace accident, that obligation does not foreclose or preclude the employer’s ability to claim privilege over information collected during an internal investigation into the incident. In this case, Occupational Health and Safety (“OHS”) issued a demand to Suncor for the production of documents and other information relating to Suncor’s internal investigation into the incident. Suncor asserted privilege over the information and refused to disclose. In response to Suncor’s refusal, OHS imposed an administrative penalty of $5,000 for failing to comply with the demand. Suncor appealed the penalty to the Court by way of originating application, seeking injunctive and declaratory remedies, with some success. This case highlights some of the difficulties that can be encountered concerning information collected for the purpose of instructing legal counsel and obtaining legal advice when responding to an OHS demand, and serves as a reminder to have legal counsel involved in the investigation as soon as possible following a workplace accident.
On April 20, 2014, an employee of Suncor was involved in a fatal workplace accident at Suncor’s facility near Fort McMurray, Alberta (the “Accident”). The employee had an electrical contact that caused serious injuries, which led to his death. Suncor reported the incident to OHS, who subsequently commenced an investigation. On the same day, Suncor also commenced an internal investigation under the guidance and direction of legal counsel. Under section 18(3)(a) of the Occupational Health and Safety Act RSA 2000, c O-2, Suncor had a statutory obligation to “carry out an investigation into the circumstances surrounding the serious injury or accident.”
On May 5, 2014, OHS Officers issued a demand to Suncor for copies of all documents related to the investigation, including witness statements and interviews. Suncor refused to specifically produce copies of all of the witness statements on the basis that they were collected as part of its internal investigation and as such were the subject of legal privilege. In October 2015, OHS Officers issued an additional demand to Suncor to investigate the Accident and prepare a report that included preventive measures adopted as well as a broader range of documents related to the investigation. Suncor again expressly asserted legal privilege over its internal investigation. The Ministry rejected Suncor’s assertion of privilege on the basis that the investigation was mandatory under the statute and the dominant purpose for the collection of the information was to meet the statutory obligation, not to prepare for litigation. OHS/Ministry later imposed a $5,000 administrative penalty on Suncor for Suncor’s failure to comply with the demands.
On January 4, 2016, Suncor filed an originating application in the Alberta Court of Queen’s Bench seeking injunctive and declaratory remedies to, inter alia, prohibit the Ministry from compelling the production of privileged documents and other records, or conducting interviews with Suncor’s investigators.
The Alberta Court of Queen’s Bench considered whether Suncor was entitled to claim privilege over the information collected during its internal investigation and whether the documents and other records created or collected during Suncor’s internal investigation were privileged. OHS argued that the information collected by Suncor was for the purpose of meeting Suncor’s statutory obligation under the OHS Act, s 18(3). Suncor argued that litigation privilege applies to an investigation where a regulatory agency undertakes an investigation that could result in the prosecution of offences.
The Alberta Court of Queen’s Bench noted that the legislative provisions of the OHS Act, namely sections 18(3)(a) and (b), require Suncor to “carry out an investigation into the circumstances surrounding the serious injury or accident” as well as “prepare a report outlining the circumstances of the serious injury or accident and the corrective action, if any, undertaken to prevent a recurrence of the serious injury or accident.” However, the Court noted that while Suncor had a statutory obligation under the OHS Act to conduct an investigation and prepare a report on the Accident, that obligation did not foreclose or preclude Suncor’s entitlement to litigation privilege. Denying Suncor its entitlement to claim litigation privilege over information created and/or collected during an investigation, because of an overlapping statutory obligation to investigate and report, would prejudice Suncor’s right to defend itself against any potential civil actions, criminal prosecutions or regulatory claims.
The Court then considered whether Suncor had established that the information, documents and records collected or created during the internal investigation were produced for the dominant purpose of litigation. Based on the affidavit evidence put forth by Suncor, the Court found that, in the circumstances of the Accident and the course of actions undertaken by Suncor’s legal counsel – beginning on the same day the Accident occurred – the dominant purpose for Suncor’s conduct of the subject investigation into the Accident was in contemplation of litigation. The Court noted that as Suncor’s internal investigation was carried out in anticipation of litigation, the information and documents created and/or collected during the internal investigation were done so with the dominant purpose that they would assist in the contemplated litigation, and therefore they were covered by litigation privilege.
In the result, however, given the volume of materials over which Suncor claimed privilege, the Court directed the Court of Queen’s Bench Case Management Counsel to act as referee (“Referee”). The Referee would determine and set the process for conducting the initial assessment and identification of the records, documents and information regarding the Accident. Following such assessment, the Referee would make recommendations for the Court to consider and approve as to which of the records, documents and information regarding the Accident were covered by litigation or solicitor-client privilege.
This decision makes it clear that even though there is a statutory obligation under the OHS Act to conduct an investigation and prepare a report following a workplace accident, that obligation does not foreclose the employer’s entitlement to assert litigation/solicitor-client privilege over the accident investigation or certain aspects of same. This case also highlights that OHS may issue broad demands for information that employers consider covered by litigation or solicitor-client privilege. While employers are obligated to comply with demands issued by OHS, employers should proceed with caution so as not to disclose information which is rightfully the subject of privilege, even in the face of OHS demands and administrative penalties. Any information provided to OHS may be used in a subsequent prosecution of offences with consequences that could include significant penalties or sanctions. As such, legal counsel should be involved early on following any workplace accident.