While it is often advisable for employers to initiate an internal investigation after a workplace accident, such investigations can give rise to the risk that the resulting evidence is used against the employer in a subsequent health and safety prosecution.
That is precisely what happened when Bruce Power disclosed an internal investigation report to their union. However, the Ontario Superior Court of Justice recently dismissed an appeal by the Crown to allow the admission of the report into evidence at a trial under the Occupational Health and Safety Act. The court held that the report was protected by solicitor-client and litigation privilege and that neither privilege had been waived by Bruce Power. Accordingly, the report could not be used as evidence against Bruce Power.
What is the Case About?
Immediately after a workplace injury, Bruce Power was advised by external counsel to conduct an internal investigation and to prepare a report over which Bruce Power claimed solicitor-client privilege and litigation privilege. External counsel eventually released the report to the union for the limited purpose of educating their members.
Shortly afterwards, a union representative provided the report to the Ministry of Labour, who attempted to have the report entered into evidence at trial. Bruce Power re-asserted its claims of solicitor-client and litigation privilege over the report and argued that such claims had not been waived. The Justice of the Peace agreed and ordered a stay of the proceedings. This ruling was upheld by the Superior Court on the basis that the report had been prepared in contemplation of litigation.
Solicitor-Client and Litigation Privilege and its Waiver
The court held that a solicitor-client relationship was in place when the report was created and that the dominant purpose of the report was to assist external counsel in defending its client. The court also agreed that the intention of external counsel in releasing the report was clearly limited to the use of the document for educational purposes, and that there therefore had been no waiver of solicitor-client privilege.
On the issue of litigation privilege, the court held that at the time the report was prepared and provided to the union, members of the union were also potential defendants. As such, they had "a common purpose in defending anticipated litigation". Therefore, litigation privilege also had not been waived.
The court ordered an exclusion of the report from the evidence and further ordered that the copy of the report in the court’s possession be sealed.
McCarthy Tétrault Notes:
While the decision may yet be appealed, if an employer is to assert a successful privilege claim over internal reports, the following steps should be followed:
- When an internal investigation is appropriate, the commissioning of the report should be done by legal counsel for the employer (preferably external counsel);
- When the report is commissioned, it should be clear that the report is being prepared in anticipation of potential litigation, and that the investigation and the subsequent report are subject to solicitor-client privilege, litigation privilege and confidentiality;
- Disclosure of the report should be done only through, and with the advice of, legal counsel to the employer;
- If disclosure of the report is necessary, it must be for an expressly defined, limited purpose
- If legal counsel decides that disclosure of the report should occur, the recipients must be expressly advised: of the limited purpose for which they are receiving the report; and
- that the disclosure does not constitute a waiver of the solicitor-client or litigation privilege claimed over the report.