A recent decision of the Ontario Court of Appeal in R. v. Bruce Power Inc., [2009] ONCA 573 (CanLII), affirms that where an employer has taken the important step of protecting a sensitive, detailed internal accident investigation report properly with solicitor-client privilege, that report is not subject to seizure by the Ontario Ministry of Labour (MOL). 

In Bruce Power, the court held that the Crown’s seizure of a solicitor-client privileged accident investigation report was prejudicial to Bruce Power’s right to a fair trial. As a result, all charges against Bruce Power and two of its supervisors under the Ontario Occupational Health and Safety Act (OHSA) were stayed. 

Internal accident investigation
Employers frequently conduct their own internal accident investigation to determine causation and assess steps necessary to prevent a recurrence. A detailed report of the collected information is often produced. Such reports are unquestionably valuable to the employer in determining what steps may need to be taken to prevent another accident, and to the employer’s counsel in defending any OHS charges. Conversely, this information can greatly assist the prosecution in obtaining convictions. 

Crown prosecutors do not have direct knowledge of the facts and circumstances involved in a case. Their first involvement with a case may only come when he or she is given the OHS inspector’s brief recommending prosecution, by which time there is a very limited ability to collect further information or evidence.

Employers, therefore, have an informational advantage over the Crown. As potential defendants, it makes good sense for any employer to control, to the extent permitted by law, the amount of information it provides to the Crown, including limiting access to privileged internal accident investigation reports. The Ontario Court of Appeal decision in R. v. Bruce Power Inc. provides useful guidance on this issue.

Facts and decision
On January 21, 2002, a worker was seriously injured in a fall while working at the Bruce “B” Generating Station. In December 2002, Bruce Power Inc. and two of its supervisors were charged with offences under the OHSA. 

The MOL commenced an investigation on the day of the accident. That same day, Bruce Power contacted a lawyer specializing in OHSA matters, who requested that the company
investigate the accident and provide a report to be used for purposes of facilitating legal advice and for use in the defence of anticipated OHSA charges. 

Bruce Power formed an accident investigation committee including both management and unionized employees. The terms of reference expressly provided that the investigation was being undertaken in contemplation of litigation and that all documents created during the investigation, including the investigation report, were to be held in confidence by Bruce Power’s legal department. 

A draft report, marked “Confidential” in large, bold type, was prepared and distributed to the committee members along with written instructions to keep the information confidential, and either return or destroy all copies. All but one committee member complied with this directive. 

However, in advance of the trial, the member of the accident investigation committee who had retained a copy of the report provided the MOL inspector and the Crown prosecutor with a copy of the report. Bruce Power and its supervisors brought a motion for a stay of proceedings at the outset of trial, alleging that the report was subject to solicitor-client and litigation privilege, and that the Crown’s seizure of the report violated their rights to a fair trial under the Charter of Rights and Freedoms.

The trial court found that the report was subject to both solicitor-client and litigation privilege. The report contained information that could be used to the disadvantage and prejudice of the defendants, and those items were intended to be privileged. Importantly, the court found that the inspector was aware that Bruce Power claimed privilege over the report at the time it was provided by the member. The Crown provided no evidence that it had not used the report to prepare its case. 

Ultimately, the Court found that sections 7, 8 and 11 of the Charter had been violated and that a trial of the charges would be an abuse of process. It stayed all charges and awarded costs against the Crown. After a successful Crown appeal, the matter was heard by the Ontario Court of Appeal.