Canada: Some Dos And Don'ts For Internal Workplace Accident Investigations

Last Updated: May 23 2019
Article by David S. Reiter

Last week marked the one year anniversary of one of the most important non-decisions that the Supreme Court of Canada (SCC) has ever made with respect to the conduct of internal accident investigations at workplaces. Its impact will likely be felt for years to come.

The case was Suncor Energy Inc. v. Her Majesty the Queen in the Right of Alberta, and it was a non-decision because the SCC declined to grant the company leave to appeal the lower court's decision. In doing that, the SCC definitively instructed lower courts that the content of employers' investigations into workplace accidents, even if undertaken in contemplation of litigation (i.e. a prosecution), will not automatically be protected by privilege. Rather, production of the content of employers' internal investigations, depending on the documents in which they are found, could be compelled by investigators and used to convict the employers that create them.

Obviously this creates a problem. Companies need to investigate accidents so they can identify problems and make needed changes. At the same time, companies want to do everything they can to ensure that their reports don't end up being used against them in court.

As is the case with most things, when one understands the problem, one can start to address it. In this article, we provide a brief overview of the law on privilege as it pertains to employers' internal investigations into workplace accidents, and we map out some broad steps that companies may have available to them to protect their workplace accident investigations.

Suncor Energy

Suncor is the seminal non-decision on privilege and internal investigations into workplace accidents.

What Happened?

A Suncor employee was fatally injured at a worksite. Authorities commenced an investigation. So did the Company. The authorities, in their investigation, required the production of, inter alia, documents that had been created and/or collected during Suncor's investigation. Suncor refused, claiming that the material was privileged.

The authorities asked the Court to order that Suncor produce the material. In considering the application, the Court accepted Suncor's position that the internal investigation had been undertaken for the dominant purpose of contemplated litigation, and as a result it found that the associated documents were protected by litigation privilege.

The Province appealed and the Alberta Court of Appeal allowed the appeal. It found that the question had been improperly framed. The issue was not whether or not the investigation had been undertaken for the dominant purpose of litigation. Rather, the question was whether a specific document (or group of documents) had been created for the dominant purpose of litigation. As such, a review of each document was required.

What Does This Mean for Employers?

Employers have to recognize that they may end up being required to produce whatever documents they create or collect on an investigation.1 Privilege is not automatic, even when litigation is contemplated. For example, if a company conducts an investigation to identify the root cause of an accident – the interviews, analyses and conclusions related to that investigation could be producible. In our practice, we have seen this problem arise time and again where charges have been laid. All too often, companies end up being compelled to produce their investigation reports, and in turn they end up in the Crown disclosure. On more than one occasion, we have seen prosecutors take the position that internal investigation reports reflect admissions of guilt.

How Can Employers Protect Themselves?

Employers don't really have a choice. They need to investigate accidents so that they can address operational and safety issues. That is just something that is beyond their control.

Having said that, employers can control the way that they conduct investigations, and how and what related records they create. It is in that respect that employers can take a few preliminary steps to try and protect themselves.

First: Employers should never jump to conclusions.

Employers have to be careful not to jump to any conclusions about what may have happened, and they certainly should not reduce such premature conclusions to writing.

Time and again, we have seen employers opine, or ask their workers to opine, on the cause of an accident in an initial investigation report. Then, after a detailed investigation is conducted, they end up discovering that the initial conclusion was wrong. Unfortunately, by then the damage may already have been done. First impressions tend to last.

Obviously there are times that written reports will have to be prepared and produced at the early stages of an investigation. For example, regulations under the Occupational Health & Safety Act, R.S.O. 1990, c. O1 require employers to provide reports to the Ministry of Labour within days of an accident, and those reports often have to explain circumstances of an occurrence and the steps that an employer is taking to prevent its recurrence. In those instances, unless there is absolutely no room for error, we recommend that such requirements be addressed by reporting only on absolute facts without commentary. The report should speak to the what, the where, the when and the who. It should not speak to the why. To address that, we recommend that the report explain that the cause of the incident is being investigated, and that any appropriate steps that may be identified will be implemented.

Second: Employers should consider maintaining privilege where they can.

There are two types of privilege that can apply to a workplace investigation: Litigation privilege and Solicitor Client privilege.

Litigation privilege was dealt with in the Suncor case. It applies to documents that have been created for the dominant purpose of litigation, and where it applies, companies can legitimately resist producing the protected documents to an inspector. Litigation privilege however may not protect documents that were created for operational purposes, or for dual purposes (i.e. operational and litigation purposes), and given that root cause analyses often have to be done irrespective of litigation, companies may end up facing an uphill battle in trying to protect their internal investigation reports.

Solicitor client privilege is different. It protects communications between clients and their lawyers that are made for the purpose of obtaining or providing legal advice. In the investigation context, there may be a number of ways that internal reports can be protected by solicitor client privilege. For example, if there is a workplace incident, the initial underlying facts will have to be collected by the company. Those facts are what they are and will never be privileged. However, the opinions or conclusions that may eventually drive a company's reaction to an investigation are a separate matter. Those may be capable of being protected.

To that point, after a company has collected all of the facts, the next logical step is to consider potential responses. If the company set out its reasoning and proposed next steps in an internal report or memorandum, it wouldn't be privileged unless it fit into the post Suncor narrowed litigation privilege category. However, if the company sets its thinking out in a letter to its counsel – that could be protected. For example, if the letter explains the company's thinking for the express purpose of seeking the lawyer's opinion as to whether or not the analysis and proposed steps adequately address the company's civil or regulatory liability on a go forward basis, arguably, that communication is made for the purpose of obtaining legal advice, and on its face, it could be privileged.

Continuing on, there are certainly going to be instances in which an expert's opinion is needed in order to develop and address next steps. In those cases, it may make sense for a company to set out the issue(s) to its lawyer in a letter, along the lines set out above, and to have the lawyer engage the expert(s) so that the lawyer can develop with the expert, and advise the company on, legally sufficient next steps. In that way, operationally-based expert analyses may also be capable of protection.

Third: Companies should always speak to their lawyer before deciding on a course of action.

The approaches set out above need to be carefully developed with counsel if they are going to have effect, and companies need to reach out to their lawyers to develop customized approaches that can work for them. Obviously not all investigations will need to be privileged. However, given that fine amounts for companies have tripled in the last year from a maximum $500,000 per count to $1.5M per count, there may be accidents that involve critical injuries or fatalities, in which the costs associated with taking steps to protect privilege are justifiable and should be made.

Footnote

1. Occupational Health & Safety legislation provides inspectors with broad powers with which to compel production from employers.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions