Originally published in Blakes Bulletin on Environmental
Law, December 2008
"In anticipation of litigation and in order for us as your
legal counsel to have information necessary to provide you with
legal advice, we request that you immediately undertake a complete
investigation of this incident."
Do these words, written to a company by its lawyer, properly
establish a privileged solicitor-client relationship to protect
all of the documents generated by the company's
investigation of an environmental incident from seizure by
Recently, the British Columbia Supreme Court confirmed such
language does protect a company from having its investigation
materials seized and used against it by regulatory officials.
Moreover, the court ruled that when a prosecutor challenges the
existence of the privilege, it is not necessary for the company to
have the author of every document prepared in the investigation
swear in court (by affidavit or viva voce evidence) that
each document was prepared for the dominant purpose of
The Supreme Court decision is a helpful outcome of an incident
involving a collision of two trains that led to explosions, flames
and the leak of gasoline and diesel fuel. The in-house counsel for
the railway company immediately commissioned an investigation using
language similar to the above, modified only slightly to reflect
his role as in-house counsel. After environmental officers then
seized some of the investigation documents, the company and the
Crown appeared in court for a ruling on whether or not the
documents were protected from seizure and disclosure to the
investigators by the lawyer's claim of privilege.
The prosecutor argued that the company could only successfully
assert its privilege claim over the documents if the author of
each investigation document (there were several) swore
they were all prepared for the dominant purpose of anticipated
litigation. However, the court rejected the prosecutor's
invitation to impose such an unwieldy requirement to the successful
establishment of the privilege claim. Instead, the court ruled that
a reasonable person with knowledge of the circumstances of the
incident would conclude that litigation was a likely consequence,
and that litigation would be reasonably contemplated each time an
investigation document was created.
The court's ruling is a common sense approach to determining
a privilege claim over an internal investigation conducted after an
environmental incident. The ruling dispenses with the requirement
that every investigation document author need testify that the
document was created for the purpose of the investigation and in
anticipation of litigation. Once a company lawyer launches an
investigation process after the incident and each document is noted
as being made for that purpose, a reviewing court is prepared to
reasonably assume such documents were prepared in anticipation of
It is important for companies to pay attention to this British
Columbia Supreme Court ruling and ensure that a privileged
investigation is launched as soon as possible after an incident. It
is also important not to establish investigations for other
reasons. Experience suggests that parallel investigations tend to
become intermingled as they progress, often because the information
needed for one is identical to that needed for the other. This
blurs the line between privileged and non-privileged material, and
may place the entire privilege claim in jeopardy. Absent any
statutory requirements, other investigations (such as for the
purpose of learning to avoid problems in the future) should be
postponed until well after the legal investigation is completed and
should not involve the creation of documents for which a claim of
privilege is sought. Taking any other approach to investigating an
incident runs a serious risk of compromising a fundamental
requirement to a successful privilege claim – that the
dominant purpose of the investigation was to obtain legal advice in
anticipation of litigation.
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.
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