On November 14, 2014, in compliance with section 18 ofOHSA, Suncor provided OHS with a report of its investigation.Suncor also produced materials that pre-dated or coincided with theworkplace accident but asserted solicitor-client privilegeand\u002for litigation privilege over materials created orcollected in the course of its internal investigation after theaccident. Her Majesty the Queen in Right of Alberta (Alberta) filed anoriginating application on February 26, 2016, seeking an order thatSuncor provide the refused materials and allow OHS to interviewSuncor's internal investigators, or at least provide furtherparticulars about the claims of privilege. Court of Queen's Bench of Alberta Decision The Court of Queen's Bench of Alberta considered whetherSuncor was entitled to claim privilege over the informationcollected during its internal investigation and whether thedocuments and other records created or collected duringSuncor's internal investigation were privileged. The chambersjudge noted that while Suncor had a statutory obligation under theOHSA to conduct an investigation and prepare a report on theaccident, that obligation did not foreclose or precludeSuncor's entitlement to litigation privilege. The chambersjudge found that as Suncor's internal investigation was carriedout in anticipation of litigation, the information and documentscreated and\u002for collected during the internal investigationwere done so with the dominant purpose that they would assist inthe contemplated litigation, and therefore the information anddocuments were covered by litigation privilege. Alberta appealedthe chambers judge's decision to the Court of Appeal. On appeal, Alberta conceded that the occupational health andsafety legislation, the OHSA, did not preclude claims of privilege.Notwithstanding its concession, Alberta argued that the chambersjudge erred in making a general finding that the dominant purposeof Suncor's internal investigation as a whole was incontemplation of litigation. In particular, Alberta argued that thechambers judge's conclusion was contrary to the settledprinciple that the dominant purpose for creating any particularrecord must be established on a document-by-document basis. The Court of Appeal agreed with Alberta and found that thechambers judge had erred in finding that the dominant purpose ofthe internal investigation was in contemplation of litigation andtherefore every document ccreated and for collected during theinvestigation was clothed with legal privilege. The Court of Appealfound that Suncor could not, simply by having legal counsel declarethat an investigation had commenced, throw a blanket over allmaterials created and for collected during the internalinvestigation so as to clothe them with solicitor-client orlitigation privilege. The Court of Appeal noted that where aworkplace accident has occurred and the employer has statutoryduties under the OHSA and simultaneously undertakes an internalinvestigation, if the employer claims legal privilege over thematerials derived as part of the investigation, an inquiry shouldbe directed to a referee in order to determine the dominant purposefor the creation of each document or bundle of similar documents inorder to assess the claim of privilege.
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