Canada: Internal Investigations And Privilege: A Redux

Last Updated: May 24 2016
Article by Scott H.D. Bower and Russell Kruger

An internal investigation into a workplace accident was privileged, and thus protected from disclosure, the Alberta Court of Queen's Bench recently held in Alberta v Suncor Energy Inc, 2016 ABQB 264 [Suncor]. The Court found that notwithstanding an Alberta Occupational Health and Safety Act [OHSA] requirement to carry out an investigation and prepare a report, certain information and records created or collected during the investigation were protected by litigation and legal advice privilege.

Documents that are privileged do not have to be disclosed to the other side in a lawsuit or in a freedom of information response. Several different types of privilege can apply to protect records created or collected during an internal investigation, the most common of which are litigation privilege and legal advice privilege. Litigation privilege covers records created for the dominant purpose of existing or contemplated litigation, while legal advice privilege attaches to communications between lawyers and clients made for the purpose of obtaining legal advice.

In an earlier post, we reviewed Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561 [Talisman], where Master Prowse discussed these different types of privilege in the context of an internal investigation. The Master held that documents collected in an investigation, headed by in-house counsel, were protected by legal advice privilege, but not, on the facts of the case, litigation privilege.

Subsequent to Talisman, the Alberta Court of Queen's Bench again had occasion to consider whether an internal investigation was privileged. In Suncor, an employee was killed in a workplace accident. On the day of the accident, Suncor reported the incident pursuant to the OHSA. It also commenced an internal investigation under the direction of in-house counsel. Occupational Health and Safety (OHS) staff also conducted an investigation, during which they collected records and interviewed approximately 15 witnesses. Under the OHSA, Suncor itself had a statutory obligation to "carry out an investigation into the circumstances surrounding" the accident, and prepare a report outlining these circumstances and the "corrective action, if any, undertaken to prevent a recurrence." Notwithstanding the furnishing of the report to OHS and the provision of the names of all persons interviewed as well as those comprising Suncor's internal investigation team, OHS demanded additional records from Suncor, including copies of witness statements and records taken or collected by Suncor's investigative team. Suncor refused, citing litigation and legal advice privilege.

The Court in Suncor first considered whether Suncor was entitled to claim litigation privilege over the information it collected during its investigation. Given Suncor's statutory obligations, could it assert that the "dominant purpose" for the collection of information was to prepare for litigation? The Court held it could, stating at paras. 45-46:

... 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.

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 ... . [Italics in original]

The Court then considered whether, on the facts, Suncor had established that the records at issue were prepared for the dominant purpose of existing or contemplated litigation. The Court referred to Talisman for the proposition that affidavit evidence sufficed for discharging the claimant's onus, and referred to the affidavit evidence of in-house Suncor counsel that outlined the circumstances under which Suncor anticipated litigation. Pointing to the seriousness of the accident, the potential for various penalties and sanctions under the OHSA, an RCMP investigation and the OHS investigation, the Court agreed that "it was reasonable for Suncor to have anticipated or contemplated that there was a very good chance" that litigation was possible, including "the likelihood of regulatory prosecution by the OHS, laying of Criminal Code charges, or civil litigation." As a result of the uncontroverted affidavit evidence, and the actions of in-house counsel which began on the same day of the accident, the Court found that the dominant purpose test was met.

With respect to legal advice privilege, the Court found that Suncor demonstrated it sought and received legal advice from internal and external counsel. In considering whether the specific records that Suncor asserted litigation and legal advice privilege over were in fact protected, given the volume of records at issue, the Court ordered Queen's Bench Case Management Counsel to act as a referee in assessing the records. The Court would then consider the referee's recommendations in finally adjudicating on the records.

Suncor broadens and strengthens the ability of companies to keep internal investigations privileged, even in the face of a statutorily-mandated investigation. As with Talisman, Suncor demonstrates the importance of having, and following, formal internal investigation policies and procedures to make it clear that investigations are being made for the dual purpose (where possible) of ascertaining facts in order to obtain legal advice and preparing for contemplated litigation. As the facts of Suncor illustrate, having the investigation focused and directed by a lawyer as soon as possible is important. Where that lawyer is in-house counsel, care must be taken to demonstrate that the purpose of the investigation is legal, rather than business-related.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Scott H.D. Bower
Russell Kruger
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.