Photo of Chris JohnstonBy Chris JohnstonJuly 24 2017
Litigation

Court of Appeal’s New Ruling on Privilege

In the Alberta Court of Appeal’s recent decision (issued July 7, 2017) of Alberta v Suncor Energy Inc., 2017 ABCA 221, the Court refused to allow Suncor blanket litigation privilege and solicitor-client privilege over witness statements and other documents collected during an internal investigation into a fatal worksite injury.

The decision re-affirms that such documents are not covered by litigation privilege and protected from disclosure unless it is proved that the dominant purpose for their creation was in contemplation of litigation. Further, the Court reinforced the requirement that to defend such claims in Court, documents must be described in a way that distinguishes whether solicitor-client privilege or litigation privilege is the basis of the claim. This inquiry must occur on a document-by-document basis.

The case is a reminder that legal counsel may assist clients in a Courtroom, but more than that, their involvement is needed at an early stage for businesses who seek to protect witness statements and other evidence from disclosure.

Background

Suncor began an internal investigation after an employee was killed at a worksite in Alberta. Legal counsel for Suncor directed the investigation team to segregate any investigation documents.  Counsel directed the team to mark all those materials as “privileged and confidential”, which was done.

Suncor’s investigation team interviewed witnesses, recorded statements and collected photographs. Government Occupational Health and Safety (“OHS”) officers demanded Suncor to provide copies of those witness statements under section 19 of the Occupational Health and Safety Act (“OHSA”). Suncor refused to provide them to OHS, and asserted privilege over the witness statements collected by its investigation team.  It did provide other records that pre-dated the incident. Suncor claimed both solicitor-client privilege and litigation privilege over nearly all of the requested documents.

The Government of Alberta (“Alberta”) went to the Court of Queen’s Bench for an order to require Suncor to provide the witness statements Suncor obtained during the investigation.

The Court of Queen’s Bench focused its analysis on whether the dual-purpose of the investigation (first, carrying on an investigation in the context of a statutory requirement under the OHSA, and second, conducting an investigation in anticipation of litigation) frustrated Suncor’s claim of litigation privilege. The chambers judge concluded both that Suncor’s statutory obligation under the OHSA did not preclude its entitlement to litigation privilege over its investigation, and that the material created or collected during the investigation was privileged, ruling the dominant purpose of the investigation was in contemplation of litigation (see Alberta v Suncor Energy Inc., 2016 ABQB 246).Given the volume of materials over which Suncor claimed privilege, the  court directed Sucor to meet with a Court official (called a “referee”), who would assess the claim of privilege over the investigation and provide recommendations to the Court.  OHS would not be part of those meetings. Alberta appealed.

Court of Appeal Decision

The Court of Appeal reversed the decision, referring to its earlier approach in Canada Natural Resources Limited v ShawCor Ltd, 2014 ABCA 289 (“ShawCor”) that each document or group of like documents must be examined by a Court to determine the purpose behind its creation.  For solicitor/client privilege to apply, Suncor at minimum 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.

The Court of Appeal disagreed with the chambers judge’s view that the internal investigation was in contemplation of litigation, and that information deriving from the investigation would be covered by litigation privilege. The Court of Appeal found that this formulation of litigation privilege was overly broad, as it would capture materials that pre-dated the incident, if they were created or collected during the investigation.

The Court of Appeal stated that “Suncor cannot, merely by having legal counsel declare that an investigation has commenced, throw a blanket over 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”. Instead, to determine whether a document is covered by litigation privilege a Court must look at the purpose for which each document was created, not the purpose for which it may have been collected or put to use.

The Court of Appeal further disagreed with the chambers judges’ view that Suncor had sufficiently described its documents and the grounds for asserting privilege in its list of bundled records. The Court of Appeal disapproved of its approach, stating that “[m]aking a blanket assertion that both forms of privilege apply, in instances where one or the other is clearly unavailable, is a litigation tactic that ought to be discouraged”.

Suncor was ordered to provide the refused information to the referee and to identify the records, information and communications it claimed are covered by litigation privilege or solicitor-client privilege.

The outcome might have been different if Suncor had shown that there was a real risk of litigation from the incident or other claims made against it at the time its investigation arose other than the OHS investigation, or had shown that its management team was seeking and obtaining legal advice from the internal legal department about such claims.  The involvement of outside legal counsel under such circumstances may be important to a later court to show the risks the company saw, and the advice it was seeking.  .

Invitation for Discussion:

Our litigation team is skilled in putting “boots on the ground” for practical legal advice on an urgent basis If you would like to discuss this article in greater detail, or any other business law matter, please do not hesitate to contact our business litigation group at Shea Nerland LLP.

Disclaimer:

Note that the foregoing is for general discussion purposes only and should not be construed as legal advice to any one person or company. If the issues discussed herein affect you or your company, you are encouraged to seek proper legal advice.

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