V. PRACTICE ISSUES
A. Documents generated for an internal investigation of an accident can be protected by litigation privilege if they were created for the dominant purpose of litigation but that does not mean that every document on the investigation file is privileged – each document must be assessed individually on the issue of privilege.
Alberta v Suncor Energy Inc, 2017 ABCA 221, per Manderscheid, J. [4261]
I. FACTS AND ISSUES
On April 20, 2014, an employee of Suncor was involved in a fatal workplace accident in Fort McMurray, Alberta. Suncor reported the fatality to the Ministry of Labour and launched an internal investigation into the incident. Shortly after, the Ministry of Labour issued demands for production of information collected during the investigation in accordance with the provincial Occupational Health and Safety Act, R.S.A. 2000, c O-2 (the "OHSA").
Suncor provided the Ministry of Labour with a report of its investigation, and produced materials that pre-dated or coincided with the incident. However, Suncor asserted privilege over all other materials created or collected in the course of its internal investigation.
The chambers judge held that the dominant purpose of Suncor's internal investigation was in contemplation of litigation, which meant all material "created and/or collected" during the investigation under the veil of legal privilege.
This was an appeal by the provincial Crown from an order referring Suncor's privilege claim to a referee.
Issues:
- Did the chambers judge err in finding that the dominant purpose of the investigation was in contemplation of litigation?
- Did the chambers judge err in finding that the documents were sufficiently described to allow an assessment of the privilege claims?
- Did the chambers judge err in referring the assessment to a referee after making a finding about the dominant purpose of the investigation?
- Did the chambers judge err by failing to grant Alberta the right to make submissions before the referee?
II. HELD: Appeal allowed in part.
The chambers judge erred by accepting a claim that all documents created or collected in the course of an internal investigation were privilege without conducting a record-by-record analysis.
III. DECISION
A. Did the chambers judge err in finding that the dominant purpose of the investigation was in contemplation of litigation?
1. The chambers judge was held to have erred in finding that because the investigation itself was carried out in anticipation of litigation, privilege applied to all documents "created and/or collected" during the investigation. The formulation of legal privilege by the chambers judge was found to be "too broad and in error."
(a) The inquiry for the veil of privilege requires "document by document" examination or sorting via a group of like documents to determine the purpose behind their creation. Showing that a document was collected or obtained as part of the internal investigation is not enough to demonstrate that the "notes, records, photos/videos, documents" were created for the dominant purpose of litigation:
[34] Suncor cannot, merely by having legal counsel declare that an investigation has commenced, throw a blanket over all materials "created and/or collected during the internal investigation" or "derived from" the internal investigation, and thereby extend solicitor-client privilege or litigation privilege over them. This Court stated in ShawCor [Canadian Natural Resources Limited v ShawCor Ltd., 2014 ABCA 289], at para 84, that "[b]ecause the question is the purpose for which the record was originally brought into existence, the mere fact that a lawyer became involved is not automatically controlling." And further, at para 87, the Court stated that "the purpose behind the creation of a record does not change simply because the record is forwarded to, or through, in-house counsel, or because in-house counsel directs that all further investigation records should come to him or her."
[35] First, ShawCor requires that, under the dominant purpose test, the inquiry must focus on the purpose for preparing or creating the material, not the purpose for obtaining it. Second, it is necessary for the referee to examine each of the contested documents or bundle of like documents to determine whether or not they meet the test of legal privilege. In doing so, it is necessary to apply a legal definition of the claimed solicitor-client privilege or litigation privilege.
2. The chambers judge's finding that the provisions of the OHSA did not automatically allow for privilege was upheld but he was held to have erred in finding that the documents were sufficiently described to allow an assessment of the privilege claims. Suncor's privilege claims were not sufficiently particularized to identify whether material was created in contemplation of litigation, or merely collected or obtained for that purpose.
(a) The Court gave further direction on how to describe which privilege they are claiming:
[46] Parties must describe the documents in a way that indicates the basis for their claim: ShawCor at para 9. The grounds for claiming solicitor-client privilege and litigation privilege are distinct. A description that supports one class of privilege does not necessarily support the other.
[47] To support a claim of solicitor-client privilege, Suncor must at least describe the documents in a manner that indicates communications between a client and a legal advisor related to seeking or receiving legal advice.
[48] To support a claim of litigation privilege, Suncor must describe documents with enough particularity to indicate whether the dominant purpose for their creation was in contemplation of litigation.
3. The judge agreed with Alberta's counsel that the referee would be prejudiced by the chamber's judge already finding that the documents were created in contemplation of litigation. He also agreed that although there was no error in invoking the referee process, Alberta should have the opportunity to make submissions to the referee as to the basis of the documents relevance.
4. The Court concluded that the statutory obligations upon Suncor following a workplace accident, and found in sections 18 and 19 of the OHSA, do not preclude claims of litigation privilege. In accordance with ShawCor, each document or bundle of like documents must be described with sufficient particularity to identify the claimed privilege and the evidentiary basis for the claim.
IV. COMMENTARY
- Employers must ensure they consider the Investigation's purpose.
- Documents must be assessed on a "document by document" basis.
- Employers should be encouraged to consult with legal counsel if there is an intention to claim legal privilege.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
