By Mari-Len De Guzman
A recent decision of the Ontario Court of Appeal in R. v. Bruce Power Inc.,  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.
Court of Appeal decision
On July 17, 2009, the Ontario Court of Appeal confirmed the trial court’s decision that all charges ought to be stayed. A key factor in the court’s decision was the fact that the report was subject to solicitor-client privilege. In cases where the Crown obtains such privileged information, prejudice to the defendant will be presumed, but the Crown can rebut the presumption by explaining what information has been learned and the steps taken to avoid the resulting prejudice. In Bruce Power, the Crown was unable to lead evidence to rebut the presumption of prejudice.
The Court of Appeal was careful to point out that not every breach of solicitor-client privilege will result in a stay of proceedings as the law treats this as a remedy of last resort. However, this remedy was required in Bruce Power, and the Court of Appeal restored the stay of proceedings.
Lesson Learned: Protecting reports with privilege
The Bruce Power decision provides important insights into the measures and practices that may help ensure that a company’s detailed internal accident investigation report remains privileged and cannot be used by the Crown. We suggest employers consider the following measures:
• Ensure that the internal investigation report is prepared at the direction of legal counsel, by having legal counsel make this request by email or correspondence before materials are gathered and the report is prepared;
• If counsel specializing in OHS matters will be retained, retain that counsel as soon as possible after the accident in order to obtain advice on properly protecting reports and other internal materials. Any waiver of privilege over protected materials should occur in an informed manner, and to the extent possible, after reviewing all available information;
• Ensure that the report clearly states that it is being prepared for potential litigation and that every person involved in the preparation of the report understands the purpose, and that all information collected is to be confidential. All materials intended for legal counsel should be marked “solicitor-client privileged”. All materials gathered using contemplated litigation privilege should be marked “confidential – in contemplation of litigation”. All files containing privileged information should be similarly marked when kept in the workplace and kept segregated from other material that is accessible within the workplace;
• Ensure that all persons interviewed during the internal investigation are told that the investigation is for the purpose of anticipated litigation and that the information they provide will be confidential and for the use of legal counsel;
• If necessary, where the internal privileged report is requested or the government OHS officer becomes aware of its existence, ensure that the officer is advised that the internal report is solicitor-client and/or contemplated litigation privileged;
• Ensure that the privileged investigation and report are prepared independently of any other workplace investigation (e.g. the investigation and report prepared by a worker member of the joint health and safety committee pursuant to subsection 9(31) of the Ontario OHSA);
• Ensure that any dissemination of the report to third parties (experts, physicians, other parties) is done only by or on the advice of legal counsel; and
• Ensure that, if the report is disseminated to small numbers of involved parties in the workplace, it is for a strictly defined purpose and that the recipient is fully aware that solicitor-client and/or litigation privilege is not being waived. Such dissemination creates risk of waiver of the privilege, and should usually only occur after advice from counsel.
Employers and management unquestionably have important obligations under OHS legislation. However, when a workplace accident occurs and OHS enforcers may bring charges against the employer or management, they are also entitled to ensure that their legal interests are protected. Ensuring that probing and detailed internal accident investigations remain confidential and are not used by OHS enforcers and Crown prosecutors is a key element in an employer’s accident response plan. The Bruce Power decision is a positive one for employers and it provides useful instruction on the measures and steps necessary to support a claim of privilege.
[em]Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and leads Heenan Blaikie’s national Occupational Health and Safety and Workplace Safety and Insurance Practice Group. You can reach her at firstname.lastname@example.org or at 416 360.2897.
Jeremy Warning is a senior associate in Heenan Blaikie’s national Occupational Health and Safety and Workplace Safety and Insurance Practice Group. You can reach him at email@example.com or at 416.643.6946.[/em]
Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and www.cos-mag.com.