SCC dismisses leave in litigation privilege case dealing with internal investigation

By Yves Faguy May 3, 20183 May 2018

The Supreme Court of Canada has dismissed leave to appeal in Alberta v. Suncor Energy Inc. Alberta, which raised some interesting litigation privilege questions in the context of internal investigations.

The case tracked the story of a Suncor employee who died from injuries at a worksite near Fort McMurray.  In anticipation of litigation, Suncor’s legal counsel launched an internal investigation and asserted solicitor-client privilege over collected materials.  Though Suncor shared its report with government occupational health and safety officers, it would not accede to their request to interview investigators and get access to certain documents. The Alberta government sought an order to force Suncor to provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The trial judge found that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation. Therefore all material coming out of that investigation was subject to legal privilege.  But the Alberta Court of Appeal narrowed somewhat the privilege claim that can exist over internal investigations.  It found that the simple fact that documents were collected in the course of an investigation did not make them privileged per se, if not created for the dominant purpose of litigation (as opposed to becoming privileged by merely having been collected as part of the investigation)

The case held particular interest for corporate counsel who are the ones typically called upon to conduct internal investigation and to assess the legal risks that can result from an incident.

The Supreme Court of Canada has dismissed leave to appeal in Alberta v. Suncor Energy Inc. Alberta, which raised some interesting litigation privilege questions in the context of internal investigations.

The case tracked the story of a Suncor employee who died from injuries at a worksite near Fort McMurray.  In anticipation of litigation, Suncor’s legal counsel launched an internal investigation and asserted solicitor-client privilege over collected materials.  Though Suncor shared its report with government occupational health and safety officers, it would not accede to their request to interview investigators and get access to certain documents. The Alberta government sought an order to force Suncor provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The trial judge found that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation. Therefore all material coming out of that investigation was subject to legal privilege.  But the Alberta Court of Appeal narrowed somewhat the privilege claim that can exist over internal investigations.  It found that the simple fact that documents were collected in the course of an investigation did not make them privileged per se, if not created for the dominant purpose of litigation (as opposed to becoming privileged by merely having been collected as part of the investigation)

The case held particular interest for corporate counsel who are the ones typically called upon to conduct internal investigation and to assess the legal risks that can result from an incident.

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