As in-house counsel, you are tasked with managing a workplace accident investigation pursuant to occupational health and safety legislation that applies to your company. You begin the investigation by appointing an investigation team and in the course of the investigation, witnesses are interviewed and recorded, photographs are collected and documents are created (the “Documents”). You direct the investigation team to separate the investigation documents from other internal documents and endorse all the material as privileged and confidential. You are confident your “investigation file” is protected from production on the grounds of privilege.
As the matter proceeds further, the government’s Occupational Health and Safety office requests that your organization produce the Documents to it. You object on the grounds of privilege. Will your objection stand up to court scrutiny?
The answer is “maybe” if you sufficiently describe the Documents to reflect exactly what type of privilege is being claimed. In the descriptions, the material must be broken down into further sub-groups so the Court can examine each grouping of the Documents on a case-by-case basis. As stated by the Alberta Court of Appeal, a company “…cannot, merely by having legal counsel declare that an investigation has commenced, throw a blanket over all materials “created and/or collected during the internal investigation or “derived from” the internal investigation, and thereby extend solicitor-client privilege or litigation privilege over them.”1Alberta v. Suncor Energy Inc., 2017 ABCA 221 The mere fact a lawyer became involved is not determinative of the issue. The purpose behind why the record was created does not change just because it flowed through in-house counsel.
The courts require that each document or bundle of like documents be described with sufficient particularity so that the exact claim of privilege is clear. For example, if solicitor-client privilege was being advanced, the description must be such that it indicates the communications between a client and a legal advisor related to seeking or receiving legal advice.
Ultimately, when it comes to determining if a particular piece of correspondence is covered by privilege or not, the Supreme Court of Canada has concluded that “…each situation is to be assessed on a case by case basis to determine if the circumstances were such that privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.”2Pritchard v. Ontario (Human Rights Commission),  SCJ No. 16 This analysis becomes particularly important when it is alleged that a particular piece of advice was provided by corporate counsel in a non-legal context. Advice to internal clients that is business-oriented in nature and not legal, will not be cloaked with the benefit of privilege.
What can be done to have the best chances of keeping privilege intact while you perform your corporate counsel role, particularly when it comes to workplace investigations?
One option is to engage outside counsel from the outset so as to have the best chance of ensuring materials created in the investigation are privileged. There will be less doubt when all matters are flowing through external counsel that privilege applies. Also, while not determinative, it is prudent to label communication leaving your office to internal clients as being legal or non-legal. A Court will look behind the communication as to its real purpose3Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10 but there is no doubt that taking the step of labelling will be one piece of helpful evidence if the matter ever became litigious and privilege was claimed and disputed.
In this same vein, it is advisable to not simply label something as privileged or constituting legal advice if it is not. Doing so will likely impact your credibility before the Court and possibly within your own organization. If everything is privileged and confidential, suspicion may be raised as to what is truly confidential and what is not. The Court will be looking at the level of discernment applied by in-house counsel in reviewing such labelling.
Further, if a matter requires an expert opinion, such as an investigator, it is likely prudent to have external counsel engage the expert. Taking care to not address both business and legal details in the same piece of correspondence is a recommended step.
Logistically, you may want to consider setting up a private folder or area on your company’s electronic records system for the privileged components of your investigation. This will avoid any inadvertent mixing of materials and would allow you to confidently tell the Court later that everything was kept separate. In the case of an OHS matter, you may want to consider keeping two separate matters open – one for the internal investigation component and the other for the purposes of your statutory requirements.
Training staff about what privilege is and what steps they can take to ensure there is no waiver of privilege might be a useful exercise for your entire organization.
The litigation team at Carscallen LLP can assist you and your organization to put policies and procedures in place to address privilege and avoid any inadvertent waiver of privilege. Our team is also available to provide advice on best practices in setting up or managing a workplace investigation. Being proactive is the best way for your organization to prepare for what is likely to be an inevitable situation where it is called upon to react and respond to a workplace incident.
- 1Alberta v. Suncor Energy Inc., 2017 ABCA 221
- 2Pritchard v. Ontario (Human Rights Commission),  SCJ No. 16
- 3Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10