An Alberta judge has suggested that if a workplace safety policy
or program requires that certain accidents be investigated, then
the accident investigation reports may not be subject to litigation
privilege – meaning that government safety investigators
may be entitled to obtain the investigation file.
The comment was made in a case that involved an investigation by
an in-house lawyer after a "whistleblower" complained
about a potential conflict of interest by a former employee.
Because the company had not shown that the dominant purpose of the
investigation was to assist in anticipated litigation, rather than
to satisfy the requirements of the company's whistleblower
program, the investigation documents were not litigation
The court offered the following analogy, which is of interest to
health and safety professionals:
"A useful analogy might be drawn to the many reported
cases dealing with fire or explosions at industrial facilities.
When such event occurs it is obviously a real possibility that an
investigation will result in litigation against, for example, the
manufacturer of faulty equipment. However, the owner of the
facility likely has workplace safety programs. Defendants to
litigation are entitled to explore through cross-examination the
parameters of the workplace safety program in order to advance an
argument that, while anticipated litigation was one of the reasons
for the investigation, the requirements of the workplace safety
program was an equal reason for the investigation. Likewise, the
defendants in this case are entitled to explore through
cross-examination, inter alia, the extent to which the
investigation which occurred was required under Talisman's
While, in the whistleblower case, the company was not able to
rely on litigation privilege to avoid turning over the
investigation documents to the other side in a civil lawsuit, the
court decided that the company could rely on legal advice privilege
(also called "solicitor-client privilege"). The
court held that one of the purposes of the investigation was to
ascertain the facts in order to get legal advice from their
in-house counsel and, if the matter proceeded further, their
outside counsel. As such, the investigation file was subject
to legal advice privilege and the company was not required to give
it to the opposing party.
Employers should ensure, when faced with a serious accident,
that they consider retaining legal counsel promptly to provide
advice and to attempt to attach "legal advice
privilege" to the investigation file. Otherwise, the employer
may – depending on what its safety program says about
investigations – be required to turn over the entire
investigation file to the government safety investigators.
Dentons is the world's first polycentric global law firm. A
top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm
is committed to challenging the status quo in delivering consistent
and uncompromising quality and value in new and inventive ways.
Driven to provide clients a competitive edge, and connected to the
communities where its clients want to do business, Dentons knows
that understanding local cultures is crucial to successfully
completing a deal, resolving a dispute or solving a business
challenge. Now the world's largest law firm, Dentons'
global team builds agile, tailored solutions to meet the local,
national and global needs of private and public clients of any size
in more than 125 locations serving 50-plus countries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).