Throughout the Suncor Investigation, documents were marked as privileged and confidential on the basis that “litigation was a real and distinct possibility” and a thorough investigation was required for the purposes of fulsome legal advice. In the course of their investigation, OHS officers requested production of certain documents, pursuant to s. 19 of the OHS Act, including notes, photos, videos and witness statements with respect to the incident. Suncor refused to produce copies of the witness statements and interviews obtained during the Suncor Investigation, claiming legal privilege (the “Refused Information”). Notwithstanding this refusal, both the Suncor Investigation and the OHS officers’ investigations continued. Several months later, OHS officers issued a demand for Suncor “to investigate the Accident and prepare a report that includes preventive measures adopted.” Suncor prepared and submitted its report to OHS. OHS then submitted a new demand for a broader range of documents, including: a list of names and contact information of all persons who gave statements or were interviewed by or on behalf of Suncor in respect of the accident; copies of all witness statements and interviews taken with respect to the accident; a list of names and contact information for all persons who were involved in the investigation process, either directly or indirectly, on behalf of Suncor; and copies of all notes, records, photos, videos, documents, root cause analysis taken or collected by Suncor’s internal investigation team. Suncor produced the names of its interviewees and the names and contact information of the persons conducting the Suncor Investigation, but maintained legal privilege over the remainder of the documents requested. The Government of Alberta (“Alberta”) rejected the privilege claim, asserting that legal privilege does not apply where Suncor’s dominant purpose in carrying out the investigation was to meet statutory requirements, and not to prepare for potential litigation.
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