CASE COMMENT
Alberta v. Suncor Energy Inc., 2016 ABQB 264
E. Jane Sidnell, Rose LLP
This case relates to the right of the Alberta Occupational Health & Safety Department (the
"Department") to request information which a worksite owner has created or collected during
an investigation pursuant to the Alberta Occupational Health & Safety Act (OHS Act).
On April 20, 2014, a Suncor employee was fatally electrocuted at Suncor's facility near Fort
McMurray, Alberta (the "Incident"). On the same day, Suncor reported the Incident to the
Department. Representatives of the Department and RCMP officers attended at the scene of
the Incident.
Also on the same day as the Incident, Suncor commenced an internal investigation (the
"Internal Investigation"). Suncor has a statutory obligation to "carry out an investigation of the
circumstances surrounding the serious injury or accident".1 Suncor led evidence that the
Internal Investigation was constituted with a direction to endorse all documents as being
"privileged and confidential". This occurred because Suncor's management had reached the
conclusion that litigation2 was a real and distinct possibility, and that Suncor would need the
necessary information required to provide proper and fulsome legal advice concerning the
Incident.
On May 5, 2014, the Department issued a demand of Suncor pursuant to the OHS Act which
requested Suncor to produce:
(a)
Copies of all notes, records, photos/videos, documents, TapRoot or other safety root
cause determination process that were taken or collected by the Suncor Investigators;
(b)
Copies of all photographs/videos taken respecting the incident; and
(c)
Copies of all witness statements and interviews taken with respect to the Incident.
In addition, the Department sought to interview individual members of Suncor's Internal
Investigation team.
1
OHS Act s. 18(3)(a)
2
In the form of civil litigation, regulatory proceeding and criminal prosecution were a real and distinct
possibility (see para 8)
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On May 20, 2014, Suncor refused to provide the witness statements and interviews referred to
(c) above. This refusal was based on the ground that statements and interviews were collected
as part of Suncor's Internal Investigation and were subject to legal privilege.
Over the following months, the Department collected its own documents and conducted 15
witness interviews.
The OHS Act mandates that, in cases of serious injuries or accidents, the "prime contractor"
must prepare a report and submit it to the Department. On October 14, 2014, the Department
issued a demand to Suncor to investigate the Incident and prepare a report which included the
preventive measures adopted by Suncor post-Incident. Suncor prepared a report pursuant to s.
18 of the OHS Act and submitted it to the Department on November 14, 2014. The Department
confirmed Suncor's compliance with the request on December 5, 2014.
However, on October 23, 2015, the Department issued a new demand for a broader range of
documents including:
(a)
A list of names and contact information of all persons who gave statements or who
were interviewed by or on behalf of Suncor in respect of the Incident;
(b)
Copies of all witness statements and interviews taken with respect to the Incident;
(c)
A list of names and contact information for all persons who were involved in the
investigation process, either directly or indirectly, on behalf of Suncor; and
(d)
Copies of all notes, records, photos, videos, documents, root cause analysis taken or
collected by Suncor's Internal Investigation team.
In response to the October 23, 2015 request, Suncor produced the names of all persons
interviewed in relation to the Incident, together with the names and contact information of its
Internal Investigation team. However Suncor refused, and asserted legal privilege over,
production of its Internal Investigation documents.
The Department rejected Suncor's assertion of privilege and, on December 4, 2015, the
Department wrote to Suncor as follows:
This information was collected by [Suncor] in order to meet its statutory
obligation under s. 18(3) of the Occupational Health & Safety Act.
Litigation privilege can attach to information where information is
collected for the dominant purpose of preparing litigation. As the
investigation was mandatory under statute, the dominant purpose for
the collection of the information was to meet that statutory
requirement, not preparing for litigation.
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By letter dated December 11, 2015, the Department advised Suncor that:
(a)
The Department was considering issuing an administrative penalty to Suncor in the
amount of $5,000;
(b)
Suncor's failure to provide the refused information was impeding a fatality investigation;
and
(c)
The Department requested a meeting with Suncor, to be held on December 17, 2015, in
order to discuss the proposed administrative penalty.
Although the meeting was held on December 17, 2015, the matter was not resolved between
the Department and Suncor. On December 21, 2015, Suncor confirmed its position that it was
claiming legal privilege in relation to the documents the Department requested. On December
22, 2015, the Department imposed a $5,000 administrative penalty on Suncor.
On January 4, 2016, Suncor filed an Originating Application seeking injunctive and declaratory
remedies, including among other things, to prohibit the Department from compelling the
production of privilege documents and other records or conducting interviews with Suncor's
investigators.
The Department requested that Suncor describe the records over which it claimed privilege so
that the Department could consider its position. By letter dated March 2, 2016, Suncor
provided a list of records over which it claimed privilege divided into eight subcategories (the
"Refused Information"), together with four binders of documents over which Suncor was
prepared to waive privilege.
On February 4, 2016, the Department advised Suncor it would be bringing its own Application.
As a result, the issues before the Court were as follows:

Is Suncor entitled to claim litigation privilege over the information collected during its Internal
Investigation?

Are the documents and other records created or collected during Suncor's Internal Investigation
privileged? and

Has Suncor provided sufficient justification for its claim to litigation privilege and solicitor-client
privilege regarding the Refused Information?
Is Suncor entitled to claim litigation privilege over the information collected during its Internal
Investigation?
Manderscheid J. upheld Suncor's claim of litigation privilege stating under the dominant
purpose test:
[44] . . . I adopt the reasoning and conclusion . . . that the fact that a single
investigation has a dual purpose – regulatory and litigation – does not ipso facto
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extinguish nor abrogate a claimant’s right to legal privilege, where the claimant has
been able to establish that the dominant purpose for conducting the investigation was
in contemplation of litigation.
[45] In my opinion, the legal principle that emerges from the decision in Berkshire
Investments is that although Suncor has a statutory obligation under the OHS Act to
conduct an investigation and prepare a report on the Accident for the Ministry/OHS,
that obligation does not foreclose or preclude Suncor’s entitlement to litigation privilege
for all purposes, particularly if the evidence demonstrates that Suncor had taken
deliberate steps to cloak documents and information collected in the process of the
investigation with the garb of privilege in anticipation or contemplation of litigation.
[46] Denying Suncor its entitlement to claim litigation privilege over information
created and/or collected during an investigation, because of an overlapping statutory
obligation to investigate and report, would prejudice Suncor’s right to defend itself
against any potential civil actions, criminal prosecutions or regulatory claims. That result
would defeat the policy justification and purpose of the law in relation to litigation
privilege . . .
Are the documents and other records created or collected during Suncor's Internal Investigation
privileged?
Suncor relied on an Affidavit of Mr. Chell, one of its legal counsel. Mr. Chell provided evidence
that Suncor anticipated litigation primarily related to potential charges under the OHS Act
which would include penalties. In addition, there was the possibility of charges under the
Criminal Code or civil litigation arising from the Incident.
Manderscheid J. accepted that Suncor's Affidavit supported the conclusion that Suncor
anticipated that there would be a very good chance of litigation. Further, he found that the
Department had not challenged Suncor's evidence and there was no basis to contradict
Suncor's Affidavit to show that privilege was not properly claimed by Suncor. The onus was on
the Department to challenge Suncor's assertion of privilege; Suncor was not required to
"disprove alternative motivations"3. Based on those findings, Manderscheid J. found that the
dominant purpose of Suncor's Internal Investigation was in contemplation of litigation.
During the communications between the Department and Suncor, the Department indicated to
Suncor that it required the requested information as the deadline for prosecution was quickly
approaching. Manderscheid J. found that this fact confirmed the reasonableness of Suncor's
perception that there was a real probability of prosecution by the Department under the OHS
Act. It was also peculiar given that s. 18(5) of the OHS Act provides as follows:
A report prepared under this section is not admissible as evidence for
any purpose in a trial arising from the serious injury or accident, an
3
At paragraph 66
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investigation or public inquiry under the Fatality Inquiries Act or any
other action as defined in the Alberta Evidence Act except in
prosecution for perjury or for the giving of contradictory evidence.
In terms of the statutory obligation of Suncor to prepare a report, Manderscheid J. said at para.
70 that:
. . . On the face of things, these legislative provisions do neither
contemplate nor expressly authorize access to the individual author(s)
of the statutory report for an account of the process adopted in writing
the report, excepting where as an individual she/he was "present at the
accident when it occurred or [has] information relating to the accident"
...
Manderscheid J. then pointed out that the Department also has a broad statutory power to
conduct an investigation itself.
In relation to the limited use of the s. 18 report, as set out in ss.18(5) (see above),
Manderscheid J. said:
[71] Further, it seems to me that the “limited use immunity” provisions in the OHS
Act, ss 18(5) & 19(5) are also indicative of the legislature’s intent to extend some form
of privilege to the investigation conducted by Suncor and the statutory report prepared
through that process. In my view, the denial of litigation privilege to Suncor over
information obtained through the same investigation that essentially underpinned the
section 18 statutory report, would fly in the face of the legislature’s intention to make
that statutory report inadmissible “as evidence for any purpose in a trial arising out of
the serious injury or accident, an investigation or public inquiry under the Fatality
Inquiries Act or any other action as defined in the Alberta Evidence Act except in a
prosecution for perjury or for the giving of contradictory evidence” (OHS Act, s 18(5)).
Has Suncor provided sufficient justification for its claim to litigation privilege and solicitor-client
privilege regarding the Refused Information?
Manderscheid J. considered whether or not Suncor had described the Refused Information in a
manner that would enable the Department to determine that Suncor was not required to
disclose the information. Because of the volume of materials over which Suncor claimed
solicitor-client privilege and refused to produce, Manderscheid J. directed that the Court of
Queen's Bench Case Management counsel to act as a referee to determine the process for
conducting the initial assessment and identification of the records. Following that initial
assessment, the referee would then make recommendations to the Court to consider and
approve as to which of the records are covered by solicitor-client privilege.
As it relates to litigation privilege, Suncor had established the dominant purpose for carrying
out its Internal Investigation was in contemplation of litigation, but it remained to be
determined whether the specific records were created for that dominant purpose.
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Manderscheid J. directed that the referee follow the same procedure described above to
review and make recommendations with regard to the records over which litigation privilege
was claimed.
As a result, Suncor was to meet with the referee within 30 days of the date of the decision to
determine the process for the assessment. Suncor was required to provide the Refused
Information to the referee and identify which records were covered by litigation privilege and
which records were governed by solicitor-client privilege. Then the referee would make
recommendations to the Court for consideration and approval of the process. By setting up
this process, the Court considered that Suncor would not be prejudiced because the
Department would not be able to review the contents of the Refused Information.
This decision has been appealed by the Department and the outcome may be applicable to not
just to occupational health and safety matters, but all other regulatory investigations.
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