Minister of Public Safety & Emergency Preparedness and Attorney General of Canada v. Tusif Ur Rehman Chhina (Alta.)

Courts – Habeas corpus – Immigration

Mr. Chhina lost his refugee status and was removed from Canada in September 2017. While in immigration detention from Nov. 17, 2015 until he was deported, he had detention reviews. After 12 reviews ended with decisions to continue detention, he applied to the Court of Queen’s Bench for habeas corpus asserting breaches of the Charter of Rights and Freedoms. Mahoney J. held that he did not have jurisdiction to hear the habeas corpus application because an immigration detainee can seek judicial review of immigration detention decisions pursuant to a comprehensive and an expert procedure under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The Court of Appeal allowed an appeal. The Supreme Court granted leave to appeal with costs in the cause on a solicitor-client basis to the respondent. The Court also ordered an oral hearing on the motion by counsel for Mr. Chhina for an order directing the Attorney General of Canada to pay the fees and disbursements of counsel, for the appeal, at a reasonable rate of remuneration. The Court further ordered that the parties are to address at the oral hearing whether Mr. Chhina’s counsel should be appointed as amicus curiae and, if so, the terms and conditions of the appointment.



Suncor Energy Inc. v. Her Majesty the Queen in the Right of Alberta (Alta.)

Civil procedure – Privilege

On April 20, 2014, a Suncor employee was fatally injured at a worksite near Fort McMurray. Occupational Health and Safety (“OHS”) officers issued a stop-work order that day. Immediately after the accident, anticipating litigation, Suncor began an internal investigation and threw a privilege blanket over all information pertinent to its investigation. OHS issued demands for production of information under the Occupational Health and Safety Act, R.S.A. 2000, c. O-2. Suncor provided OHS with a report of its investigation, as well as materials that pre-dated or coincided with the incident since such materials could not have been prepared in contemplation of litigation, but it asserted solicitor-client privilege and/or litigation privilege over materials created or collected in the course of its internal investigation after the accident. Her Majesty the Queen in Right of Alberta brought an application seeking an order that Suncor provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The chambers judge held that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation, ordering Suncor to provide previously-refused documents and make submissions to a referee, who would then assess the claims of privilege and provide recommendations to the court. Relying on Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 SCR 521, and Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 SCR 555, as well as Canadian Natural Resources Limited v. ShawCor Ltd., 2014 ABCA 289, the Court of Appeal allowed Alberta’s appeal, in part, finding the chambers judge erred in his determination about the dominant purpose of Suncor’s investigation, ordering the referee to make recommendations to the court after examining the documents and hearing the submissions of both parties.