Canadian Occupational Safety

12 Canadian Occupational Safety www.cos-mag.com Privilege claim exists over internal investigations Suncor not required to hand over all material A s any employer experiencing the tragedy of a serious workplace accident knows, post-accident investigations matter for many reasons. Carrying them out properly is essential. Failing to do so can result in ineffective corrective action with the possibility of unsafe conditions continuing to exist or it can lead to another accident. Some Canadian jurisdictions require written workplace investiga- tions to be submitted to regulators under OHS legislation. Since accidents can result in orders (including stop work orders), pros- ecution (under provincial/territorial occupational health and safety legisla- tion or the Criminal Code of Canada), an administrative penalty, civil claims and workers' compensation litigation, employers also increasingly carry out "privileged" investigations for the pur- poses of obtaining legal advice and to protect certain information and details from litigation. But what are the limits of "privi- lege" where internal investigations are carried out? The Alberta Court of Queen's Bench, in a decision involving Suncor delivered on May 9, confi rmed that an employer can claim legal privilege over internal accident investigation materials, shielding them from pro- duction to provincial occupational health and safety offi cers — even where a government order has been issued to produce them. This decision could have long-term positive implications for all employers that have the unfortunate challenge of dealing with a serious accident and wish to assert "privilege." An appeal was fi led on June 9 and has yet to be heard. In April 2014, a Suncor employee died as a result of a workplace acci- dent. Suncor was required by Alberta OHS, under section 18 of the Alberta Occupational Health and Safety Act (OHSA) to carry out an investigation into the accident. Section 18 requires that a report also be prepared that outlines the circumstances of a seri- ous injury or accident like this and any corrective action taken to prevent it from happening again. Following the accident, Suncor began an internal investigation to comply with the OHSA and to pre- pare for possible litigation and obtain legal advice. All documents created for the purposes of the internal investiga- tion were marked by Suncor as being "privileged and confi dential." Relying on its broad investigation powers under section 19 of the OHSA, Alberta OHS offi cers issued a demand that Suncor produce documents; including root cause analysis, photos and witness statements produced during the internal investigation. The offi cers also wanted to interview the members of Suncor's internal inves- tigation team. It was the government's position, on behalf of the OHS offi cers, that materials and information collected by Suncor as part of the investiga- tion could not be privileged because Suncor was required by the OHSA to conduct the investigation. Suncor gave its statutorily required written investigation report to the Ministry of Labour. It also produced the names of persons interviewed with respect to the incident, as well as the names and contact informa- tion of its internal investigation team. However, it argued that it had legal privilege over the rest of the infor- mation gathered during its internal investigation. The ministry imposed a $5,000 penalty on Suncor for not providing all the information and the offi cers continued to demand produc- tion of the other information. The ministry went to court to get orders to compel Suncor to produce the documents over which it had asserted privilege and to compel Suncor's investigators to submit to interviews by OHS offi cers. The court rejected the government's position that privilege could not be asserted over information and mate- rial collected as part of a statutorily compelled accident investigation. The court found that a single investigation can have a dual purpose — regulatory and litigation — and that this dual purpose does not cancel out the right to assert legal privilege over the docu- ments and information collected as part of the investigation. SUGGESTIONS FOR EMPLOYERS In the hours and days immediately fol- lowing a serious workplace accident, it is critical that any organization start- ing an investigation take precautionary measures to ensure, where possible, the results of the investigation are covered by "solicitor-client" and "contem- plated litigation" privilege, including: • involving internal or external legal counsel in requests for the investiga- tion (if using in-house counsel, it is very important to be able to show that the purpose of the investigation is legal, rather than business-related) • communicating the privileged nature of the investigation and the need to preserve it as confi dential to all mem- bers of the investigation team • ensuring all investigation materials and reports are appropriately marked as privileged and are controlled • ensuring the dissemination of any report is limited. Employers also need to consider the following do's and don'ts when it comes to OHS investigators carrying out their own investigation: • Don't obstruct a regulator in the car- rying out of her investigation (such as by failing to report accidents in a timely manner or by barring entry to the scene). • Don't interfere with an accident scene (including any movement of equipment — unless it is necessary for medical aid — or conducting destructive testing or any testing, for that matter, unless it is necessary to secure the scene and ensure that it is safe for investigation). • Do preserve evidence, particularly physical evidence of conditions at the scene. • Do be respectful and professional when dealing with regulators. • Do have a solid investigation policy (including policies on thorough, detailed investigations and on involving counsel for advice and establishing privilege where appro- priate) pre-accident that has been effectively implemented. • Don't let personalities or adren- alin get in the way of performance — accident scenes can be stressful, especially if there has been a fatality. Cheryl Edwards is a senior partner in Mathews Dinsdale & Clark's occupational health and safety and workers' compensation practice in Toronto. She can be reached at (647) 777-8283 or cedwards@ mathewsdinsdale.com. Loretta Bouwmeester is a partner in Mathews Dinsdale & Clark's occupational health and safety and workers' compensation practice in Calgary. She can be reached at (403) 538-5042 or lbouwmeester@ mathewsdinsdale.com. LEGAL LANDSCAPE LEGAL CHERYL EDWARDS AND LORETTA BOUWMEESTER DANGERS IN THE WORKPLACE ARE ALL AROUND YOU. INCLUDING DIRECTLY OVERHEAD. Take the first step in protecting your outdoor workers. BeSunsible.ca Funding provided, in whole or in part by Alberta Health. Provision of funding by Alberta Health does not signify that this project represents the policies or views of Alberta Health. AHS-4668 4.25x5.75_qtrpg_AD.indd 1 2016-08-25 10:37 AM

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