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Health & Safety: Applying Solicitor-Client and Litigation Privilege to Protect Internal Investigations

Date

July 22, 2009

AUTHOR(s)

David L. Phillips
Ben Ratelband


The Ontario Court of Appeal has released its much-anticipated decision in R. v. Bruce Power Inc. This case demonstrates that the results of internal employer investigations into workplace injuries and fatalities can be shielded from use in subsequent prosecutions, provided that appropriate steps are taken by the employer to "cloak" the investigation documents in solicitor-client and litigation privilege.

The Court also clarified that when the Crown improperly obtains access to a privileged internal employer investigation report, the prosecution may be stayed unless a lesser remedy can cure the presumed prejudice caused by the Crown’s access to the privileged information.

What is the Case About?

This case arises out of charges laid under the Ontario Occupational Health and Safety Act against Bruce Power Inc. and two of its supervisors in connection with the serious injury of a worker at the Bruce "B" Power Generating Station.

Immediately following the injury, the Company sought advice from external counsel. The Company was instructed to conduct an internal investigation and to provide a report detailing the results of the investigation, which would be used by counsel to provide legal advice to the Company. The Company was further instructed by counsel to take steps to claim solicitor-client privilege and litigation privilege over the documents.

Upon completion of a draft report, copies were circulated to each of the internal investigators, which included managers and an employee who was a union official. Each copy of the draft report was marked "Confidential" and each of the internal investigators was instructed not to disclose the draft report and to return or destroy all copies in their possession.

Despite the Company’s clear instructions, the union representative subsequently provided a copy of the internal investigation report to a Ministry of Labour Inspector. The Ministry then attempted to have the report entered into evidence during the trial in the prosecution of the Company and the two supervisors. The Company asserted its claim of solicitor-client privilege and litigation privilege over the report and brought a motion for a stay of the prosecution.

Privileged Status of Internal Investigation Reports

The lower courts supported the Company’s position that the internal employer investigation report was protected by solicitor-client and litigation privilege. They found the report included information that could have been used to the disadvantage and prejudice of the Company and that the employer clearly intended for the reports to be privileged.

In this respect, the lower courts placed considerable weight on the fact that the Company, through its internal and external counsel, continually stressed throughout the investigation that the report was being prepared in anticipation of litigation and was therefore privileged.

The Court of Appeal’s judgment affirms the finding of the lower courts that the confidentiality of an internal employer investigation report may be protected in circumstances where the employer takes the necessary steps to assert solicitor-client and litigation privilege.

Armstrong J.A., on behalf of a unanimous majority, emphasized that solicitor-client privilege is "fundamental" to the justice system in Canada and must be stringently protected by the courts.

Stay of Proceedings May Flow From Crown Access to Privileged Documents

The lower courts disagreed on the question of whether the prosecution against the Company and the two supervisors should have been stayed as a result of the improper disclosure of the internal employer investigation report to the Ministry Inspector. The Justice of the Peace held that the Crown’s access to the privileged report caused the defendants’ right to a fair trial to be "fundamentally and irremediably prejudiced." She therefore granted the stay. The Crown successfully appealed to a Judge of the Ontario Court of Justice, who focused on "the strong public interest in having matters of occupational health and safety determined on the merits."

The Court of Appeal has restored the decision of the Justice of the Peace to stay the prosecution against the Company. The Court has determined that prejudice will be presumed where the results of an internal employer investigation report are improperly disclosed to the Crown and that a stay of the prosecution will be the appropriate result, unless some lesser remedy can cure the disadvantage and prejudice to the defendant.

McCarthy Tétrault Notes

This decision is good news for employers. It confirms that an employer can protect the results of internal investigations following a workplace injury or fatality, so long as appropriate steps are taken to assert solicitor-client and litigation privilege over the investigation documents.

If an employer is to assert a successful privilege claim over internal reports, care must be taken to follow certain steps, such as:

  • When an internal investigation is appropriate, the commissioning of the report should be done by legal counsel for the employer (preferably involving external counsel).
  • When the report is commissioned, it should be clear that the report is being prepared in anticipation of potential litigation, and that the investigation and the subsequent report are subject to solicitor-client privilege, litigation privilege and confidentiality.
  • Disclosure of the report should only be done through, and with the advice of, the employer’s legal counsel.
  • If disclosure of the report is necessary, it must be for an expressly defined, limited purpose.
  • If legal counsel decides that disclosure of the report should occur, the recipients must be expressly advised:
    • of the limited purpose for which they are receiving the report; and
    • that the disclosure does not constitute a waiver of the solicitor-client or litigation privilege claimed over the report.

Next Steps

We recommend that your organization review its policies and procedures regarding how internal investigations are conducted and reported, in order to minimize the risk of your internal report being used against your organization or you, if health and safety charges are levied.

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