In Alberta v. Suncor, the Alberta Court of Appeal held the application judge erred in holding that litigation privilege applied to the entire content of an internal investigation file. The case involved a workplace accident at a Suncor facility in Fort McMurray and the subsequent investigation by the Alberta Occupational Health and Safety agency ("OHS"). In the course of its investigation, OHS sought production, pursuant to its statutory mandate, of Suncor's internal investigation file. Suncor refused production on the basis of privilege, and the application judge upheld this refusal.
The Court of Appeal reversed the application judge in part, finding that privilege could only be asserted over a particular document, or bundle of like documents, and not over the whole file. Only those documents that were created for the dominant purpose of litigation were privileged. Documents that were merely collected in the course of the investigation, that either were created prior to the accident, or in the normal course of business and not for the dominant purpose of litigation, were not privileged, and did not become privileged merely by their inclusion in the internal investigation file. The Court also noted that the purpose behind the creation of a document or record does not change simply because it is forwarded to, or through, in-house counsel, or because in-house counsel directs that all further investigation should come to him or her.
This decision is of particular interest to any organization with statutory compliance obligations, or any organization required to conduct an internal investigation where the file may become producible in civil or regulatory litigation.
Suncor has applied for leave to appeal to the Supreme Court of Canada. We will update this post once the result of this application is announced.
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