Maintaining the privilege of a document is a fundamental aspect of any litigation. The Canadian legal system is premised on the search for truth, which, by default, requires parties to disclose relevant documents to one another in the course of litigation. This is the case in traditional civil actions and generally so for other similar adjudicative processes.
Canadian courts generally recognize that privileged documents need not be disclosed in the course of litigation if they are “privileged.” This is crucial to the parties’ ability to obtain legal advice in anticipation of and during litigation.
Legal privilege is asserted in many ways, most commonly: (1) solicitor-client privilege, which attaches to communications between a client and a lawyer related to seeking or giving legal advice, and (2) litigation privilege, which applies to documents created for the dominant purpose of litigation.
Privilege is of fundamental importance when anticipating and conducting litigation. However, the scope of privilege is often overemphasized. In Alberta v. Suncor Energy Inc., the Alberta Court of Appeal issued a reminder to employers that simply declaring that an investigation has begun and throwing a privilege “blanket” over all materials is not sufficient to protect them from disclosure.
In April 2014, a Suncor employee was fatally injured at a worksite near Fort McMurray. That same day, Alberta Occupational Health and Safety (OHS) issued a stop-work order. Shortly thereafter, anticipating litigation, Suncor began an internal investigation of the incident. An investigation is also required by the Alberta Occupational Health and Safety Act (OHS Act). Legal counsel directed the investigation team to segregate the investigation documents and to endorse all material as “privileged and confidential.”
Starting in May 2014, OHS issued several demands for production of information under section 19 of the OHS Act. Suncor produced materials that pre-dated or coincided with the accident on the basis that they could not have been prepared in contemplation of litigation. Suncor claimed solicitor-client privilege or litigation privilege over materials created or collected over the course of its internal investigation and produced a list of 1,655 records bundled into eight categories over which it asserted privilege.
In February 2016, the Crown sought an order from the court for Suncor to provide the records it had refused to produce.
Lower court decision
First, the chambers judge determined that, in theory, it was possible for Suncor to demonstrate that the dominant purpose of its investigation was litigation. That was the case notwithstanding the fact that Suncor was required to conduct an investigation under the OHS Act.
The judge also accepted Suncor’s evidence that the dominant purpose of the investigation was litigation. However, given the volume of documents, the chambers judge found that he could not determine whether each document was actually protected by privilege. He referred this assessment to case management counsel to act as referee and provide recommendations to the court.
Alberta appealed the decision of the chambers judge to the Court of Appeal.
Court of Appeal decision
The Court of Appeal agreed that Suncor could still claim privilege over investigation materials, regardless of the fact that the investigation was mandated by the OHS Act.
However, the agreement stopped there. The Court of Appeal found the chambers judge’s formulation of legal privilege overbroad. Even if the dominant purpose of the internal investigation as a whole was in contemplation of litigation, it did not follow that every document created or collected during the investigation was also clothed in privilege.
The court highlighted that the mere fact that a lawyer was involved was not “automatically controlling.” The purpose behind the creation of a record does not change simply because it is forwarded to or through in-house counsel, or because in-house counsel directs that further investigation records should come to him or her.
Further, the court held that the chambers judge erred in finding that the documents were adequately described in Suncor’s list. Suncor had asserted both solicitor-client and litigation privilege over nearly all the documents it refused to produce. Even though documents are frequently covered by both forms of privilege, Suncor was required to independently distinguish what form of privilege applied to each document.
To support a claim of solicitor-client privilege, Suncor had to describe the documents in a manner that indicated there were communications between lawyer and client related to seeking or receiving legal advice. To support a claim of litigation privilege, Suncor had to describe documents with enough particularity to indicate whether the dominant purpose for their creation was in contemplation of litigation. The court also held that fairness required that both parties have the opportunity to make submissions before a referee assessing privilege.
Takeaways for employers
This decision is an important reminder to employers that if privilege is asserted, it must be backed up. With that in mind, employers should be aware of the following principles when conducting any workplace investigation:
- Educate early: Employees should be briefed as early as possible on what privilege means and the types of records it may attach to. For instance, it should not be assumed that simply copying a lawyer on correspondence is sufficient to clothe that document in privilege.
- Limit the team: When an investigation is underway, the team conducting the investigation should be as narrow as possible. Once documents are disseminated more broadly, there is a risk that their privilege will be considered to have been waived.
- Involve legal counsel: If there is an intention to claim privilege over the findings of an investigation, involving external legal counsel is a prudent strategy. For example, counsel can assist in developing policies and best practices for the investigation, and in retaining external experts or providing advice on the path forward.