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SCC Dismisses Leave to Appeal the ABCA's Decision that Litigation Privilege Cannot Cloak an Employer's Internal Investigation Process

The Supreme Court of Canada has dismissed leave to appeal in Suncor Energy Inc. v. Her Majesty the Queen in the Right of Alberta. The case involved the application of litigation privilege to an internal incident investigation conducted following a workplace fatality.

In April 2014, Suncor Energy Inc. (Suncor) experienced a worker fatality at one of its worksites near Fort McMurray. Suncor immediately commenced an employer's incident investigation as required under section 18(3)(a) of the OHS Act. Based on initial information received as part of the employer's investigation, Suncor determined that litigation was a real and distinct possibility and as such, it commenced an internal investigation into the incident with direction to endorse all documents within this internal investigation as privileged.

Occupational Health and Safety Officers from the Ministry of Labour demanded that Suncor produce copies of materials (notes, records, photos, videos, documents, statements, interviews, etc.) collected as part of its incident investigation process. Suncor produced its employer incident investigation, but refused to produce the requested materials on the basis of litigation privilege. The Ministry of Labour sought an order compelling Suncor to disclose the materials.

The Court of Queen's Bench of Alberta held that the dominant purpose of Suncor's internal investigation was in contemplation of litigation and consequently ordered Suncor to meet with a referee who would assess the claims of privilege and provide recommendations to the Court about which documents were in fact privileged.

The Alberta Court of Appeal disagreed. It found that the Chambers Judge's application of legal privilege was overbroad. Whereas the Chambers Judge had applied the dominant purpose test to the internal investigation as a whole, the Court of Appeal held that it had to be applied to each document or set of documents. Absent a consideration of the specific documents, the focus of the inquiry was overbroad in that it focused on whether the document was created as part of the internal investigation as opposed to whether the creation of the document itself was primarily for the purpose of litigation. Thus, materials collected as part of the internal investigation, but not created for the dominant purpose of litigation, were not properly subject to litigation privilege. As leave to appeal has been denied, the Court of Appeal's decision stands.

The case is particularly significant for internal legal counsel overseeing investigations into workplace incidents. Counsel must not assume that everything created or collected as part of an internal investigation in anticipation of litigation will be protected by privilege. The application of the dominant purpose test is narrower. Instead of focusing on whether the document was collected or created as part of the internal investigation, they must instead ascertain whether the creation of the document itself was for the dominant purpose of litigation. If not, then litigation privilege will not apply.

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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