Suncor refused to hand the information over, claiming legal privilege. (Photo: REUTERS/Todd Korol)
When workplace accidents occur that cause serious injury or death, the law requires employers conduct workplace investigations.
Whether or not said employer has to disclose what they have found during their investigation is something that depends on what the information is used for, according to a Court of Queen’s Bench of Alberta case.
The employer, Suncor, refused to give the Ministry of Labour of Alberta documents and information related to the investigation into the death of a worker.
Under the Occupational Health and Safety Act, the employer is obligated not only to investigate and report about a serious accident or death that occurred but also to disclose the findings of the investigation to the ministry.
Suncor refused to hand the information over, claiming legal privilege. Privilege means that certain documents can be kept private during legal processes for the purpose of protecting the person or organization.
Suncor claimed the information was privileged because there was a real possibility they would face litigation. The claim of privilege was brought on the basis that Suncor needed that information to get legal advice and prepare for a possible lawsuit due to the worker’s death.
After Suncor refused a request by the ministry to produce the records, the ministry fined the company $5,000 for obstructing an investigation. The ministry met with Suncor to make another request for the information. Once again, Suncor refused and the ministry took Suncor to court to force them to produce the required documents.
The court found that while there was a legal requirement under the OHS to conduct an investigation and create a report for the ministry, that doesn’t stop Suncor from being able to claim privilege and not disclose some documents and findings, if the purpose of withholding that information is to prepare for possible litigation.
Given the severity of the accident and the potential of serious penalties and/or criminal charges, the court determined there was a good chance that Suncor could face litigation.
The court concluded that Suncor had the right to keep the documents and information private.
However, given the large volume of documents for which Suncor claimed privilege, the court appointed case management counsel to go through the documents and decide to which documents privilege attached.