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Privilege claim exists over internal investigations

Suncor not required to hand over all material

As any employer experiencing the tragedy of a serious workplace accident knows, post-accident investigations matter for many reasons. Carrying them out properly is essential. Failing to do so can result in ineffective corrective action with the possibility of unsafe conditions continuing to exist or it can lead to another accident.

Some Canadian jurisdictions require written workplace investigations to be submitted to regulators under OHS legislation.

Since accidents can result in orders (including stop work orders), prosecution (under provincial/territorial occupational health and safety legislation or the Criminal Code of Canada), an administrative penalty, civil claims and workers’ compensation litigation, employers also increasingly carry out “privileged” investigations for the purposes of obtaining legal advice and to protect certain information and details from litigation.

But what are the limits of “privilege” where internal investigations are carried out?

The Alberta Court of Queen’s Bench, in a decision involving Suncor delivered on May 9, confirmed that an employer can claim legal privilege over internal accident investigation materials, shielding them from production to provincial occupational health and safety officers — even where a government order has been issued to produce them.

This decision could have long-term positive implications for all employers that have the unfortunate challenge of dealing with a serious accident

and wish to assert “privilege.” An appeal was filed on June 9 and has yet to be heard.

In April 2014, a Suncor employee died as a result of a workplace accident. Suncor was required by Alberta OHS, under section 18 of the Alberta Occupational Health and Safety Act (OHSA) to carry out an investigation into the accident. Section 18 requires that a report also be prepared that outlines the circumstances of a serious injury or accident like this and any corrective action taken to prevent it from happening again.

Following the accident, Suncor began an internal investigation to comply with the OHSA and to prepare for possible litigation and obtain legal advice. All documents created for the purposes of the internal investigation were marked by Suncor as being “privileged and confidential.”

Relying on its broad investigation powers under section 19 of the OHSA, Alberta OHS officers issued a demand that Suncor produce documents; including root cause analysis, photos and witness statements produced during the internal investigation. The officers also wanted to interview the members of Suncor’s internal investigation team.

It was the government’s position, on behalf of the OHS officers, that materials and information collected by Suncor as part of the investigation could not be privileged because Suncor was required by the OHSA to conduct the investigation.

Suncor gave its statutorily required written investigation report to the Ministry of Labour. It also produced the names of persons interviewed with respect to the incident, as well as the names and contact information of its internal investigation team. However, it argued that it had legal privilege over the rest of the information gathered during its internal investigation. The ministry imposed a $5,000 penalty on Suncor for not providing all the information and the officers continued to demand production of the other information.

The ministry went to court to get orders to compel Suncor to produce the documents over which it had asserted privilege and to compel Suncor’s investigators to submit to interviews by OHS officers.

The court rejected the government’s position that privilege could not be asserted over information and material collected as part of a statutorily compelled accident investigation. The court found that a single investigation can have a dual purpose — regulatory and litigation — and that this dual purpose does not cancel out the right to assert legal privilege over the documents and information collected as part of the investigation.

Suggestions for employers

In the hours and days immediately following a serious workplace accident, it is critical that any organization starting an investigation take precautionary measures to ensure, where possible, the results of the investigation are covered by “solicitor-client” and “contemplated litigation” privilege, including:

• involving internal or external legal counsel in requests for the investigation (if using in-house counsel, it is very important to be able to show that the purpose of the investigation is legal, rather than business-related)

• communicating the privileged nature of the investigation and the need to preserve it as confidential to all members of the investigation team

• ensuring all investigation materials and reports are appropriately marked as privileged and are controlled

• ensuring the dissemination of any report is limited.

Employers also need to consider the following do’s and don’ts when it comes to OHS investigators carrying out their own investigation:

• Don’t obstruct a regulator in the carrying out of her investigation (such as by failing to report accidents in a timely manner or by barring entry to the scene).

• Don’t interfere with an accident scene (including any movement of equipment — unless it is necessary for medical aid — or conducting destructive testing or any testing, for that matter, unless it is necessary to secure the scene and ensure that it is safe for investigation).

• Do preserve evidence, particularly physical evidence of conditions at the scene.

• Do be respectful and professional when dealing with regulators.

• Do have a solid investigation policy (including policies on thorough, detailed investigations and on involving counsel for advice and establishing privilege where appropriate) pre-accident that has been effectively implemented.

• Don’t let personalities or adrenalin get in the way of performance — accident scenes can be stressful, especially if there has been a fatality.

This article was co-authored by Loretta Bouwmeester. She is a partner in Mathews Dinsdale & Clark’s occupational health and safety and workers’ compensation practice in Calgary. She can be reached at (403) 538-5042 or lbouwmeester@mathewsdinsdale.com.

This article originally appeared in the October/November 2016 issue of COS.

Cheryl A. Edwards

Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or cedwards@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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