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Following the accident, Suncor began an internal investigation to comply with the OHSA and to prepare for possible litigation and obtain legal advice. All documents created for the purposes of the internal investigation were marked by Suncor as being “privileged and confidential.” Relying on its broad investigation powers under section 19 of the OHSA, Alberta OHS officers issued a demand that Suncor produce documents; including root cause analysis, photos and witness statements produced during the internal investigation. The officers also wanted to interview the members of Suncor’s internal investigation team. It was the government’s position, on behalf of the OHS officers, that materials and information collected by Suncor as part of the investigation could not be privileged because Suncor was required by the OHSA to conduct the investigation. Suncor gave its statutorily required written investigation report to the Ministry of Labour. It also produced the names of persons interviewed with respect to the incident, as well as the names and contact information of its internal investigation team. However, it argued that it had legal privilege over the rest of the information gathered during its internal investigation. The ministry imposed a $5,000 penalty on Suncor for not providing all the information and the officers continued to demand production of the other information. The ministry went to court to get orders to compel Suncor to produce the documents over which it had asserted privilege and to compel Suncor’s investigators to submit to interviews by OHS officers. The court rejected the government’s position that privilege could not be asserted over information and material collected as part of a statutorily compelled accident investigation. The court found that a single investigation can have a dual purpose — regulatory and litigation — and that this dual purpose does not cancel out the right to assert legal privilege over the documents and information collected as part of the investigation.

For the original version including any supplementary images or video, visit http://www.cos-mag.com/ohs-laws-regulations/columns/privilege-claim-exists-over-internal-investigations/

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