Alberta v Suncor Energy Inc, 2016 ABQB 264

Court of Queen ’ s Bench of Alberta Citation: Alberta v Suncor Energy Inc, 2016 ABQB 264 Date: 20160510 Docket: 1603 03547 Registry: Edmonton In the Matter of an Investigation by the Ministry of Labour, pursuant to the Alberta Occupational Health Safety Act , RSA 2000, c O-2 Between: Her Majesty the Queen In Right of Alberta Applicant - and - Suncor Energy Inc, Richard Howden, Jim Harris, Corey Black, Andrew Robinson, Patrick Fortune, Juan Bracho, Wayne Macdonald, Berislav Samardzic, Ryan Tarkowski, Catherine Canning and Richard Loiselle Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid

_______________________________________________________ Introduction [ 1 ] The Ministry of Labour [Ministry or Applicant] with the Government of Alberta, which has responsibility for the administration of the Occupational Health and Safety Act , RSA 2000, c O-2 [ OHS Act ], seeks an order compelling Suncor Energy Inc [Suncor] to provide information and records related to a workplace fatality.

Suncor claims both litigation privilege and solicitor-client privilege over the requested information and records. [ 2 ] At the centre of the Ministry’s application are the issues of the scope of Occupational Health and Safety’s [OHS] authority to request information that has been created and/or collected during an investigation mandated by the provisions of the OHS Act , s 18(3), and the right of Suncor to refuse the information requests by asserting claims of litigation privilege and solicitor-client privilege over the records as well as individuals involved in the investigation of the fatality incident. [ 3 ] During oral submissions, the Court was informed that the Ministry’s legal counsel and the legal counsel for all the named individuals in this application have agreed to adjourn the application for access to the individual investigators named as respondents in this matter.

Consequently, the Ministry’s application for access to these individual members of Suncor’s investigation team was adjourned sine die by this Court. Background Facts [ 4 ] On April 20, 2014, an employee of Suncor was involved in a fatal workplace accident at Suncor’s facility near Fort McMurray, Alberta [Accident].

The employee had an electrical contact that caused serious injuries, which led to his death. [ 5 ] On the same day, after Suncor reported the incident, pursuant to the OHS Act , s 18.1, OHS commenced an investigation of the Accident. [ 6 ] Similarly, on the same April 20, 2014, Suncor commenced an internal investigation. Under section 18(3)(

a) of the OHS Act , Suncor has a statutory obligation to “carry out an investigation into the circumstances surrounding the serious injury or accident.” However, the evidence of Suncor also indicates that “[a]s a result of [Suncor’s] assessment of the information available regarding the Accident” an internal investigation team was constituted with direction to endorse “all documents as being privileged and confidential.” Suncor’s affidavit evidence is that its management had “reached the conclusion [that] litigation was a real and distinct possibility and that a thorough internal investigation, which would be privileged and confidential, would be needed to provide Suncor with the necessary information required to provide proper and fulsome legal advice concerning the Accident and in anticipation of, or in contemplation of, potential litigation that could be brought against Suncor”: Affidavit of Conor Chell, paras 7-11 [Chell’s Affidavit]. [ 7 ] On May 5, 2014, OHS Officers issued a demand to Suncor, pursuant to the OHS Act , s 19, in which they requested Suncor to produce: a.

Copies of all notes, records, photos/videos, documents, TapRoot or other safety root cause determination process that were taken or collected by the Suncor Investigators; b. Copies of all photographs/videos taken respecting the Incident; and c. Copies of all witness statements and interviews taken with respect to the Incident. [Refused Information].

In addition, OHS Officers sought to interview individual members of Suncor’s internal investigation team. [ 8 ] On May 20, 2014, Suncor refused to specifically produce “copies of all witness statements taken by Suncor in respect of the Accident” based on the ground that they were collected “as part of its internal investigation and as such are the subject of legal privilege”: see, Chell’s Affidavit, para 27. [ 9 ] Notwithstanding, in the months after the Accident, OHS Officers collected some documents and conducted approximately 15 witness interviews of Suncor’s employees with respect to the Accident: Chell’s Affidavit, para 26. [ 10 ] On October 14, 2014, and pursuant to the OHS Act , s 18, OHS Officers issued a demand to Suncor to investigate the Accident and prepare a report that includes preventive measures adopted.

Suncor submitted its written report to OHS Officers on November 14, 2014. The Ministry confirmed Suncor’s compliance on December 5, 2014. [ 11 ] On October 23, 2015, the Ministry issued a new demand for a broader range of documents, including: (

a) 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; (

b) copies of all witness statements and interviews taken with respect to the Accident; (

c) 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 (

d) copies of all notes, records, photos, videos, documents, root cause analysis taken or collected by Suncor’s internal investigation team: Chell’s Affidavit, para 29. [ 12 ] On November 25, 2015, Suncor produced the names of all persons interviewed with respect to the Accident, as well as the names and contact information of its internal investigation team. However, Suncor expressly asserted legal privilege over its internal investigation, and confirmed that the provision of information to the Ministry was not a waiver of its entitlement to privilege over them.

[ 13 ] On December 4, 2015, the Ministry rejected Suncor’s assertion of privilege. OHS wrote: This information was collected by [Suncor] in order to meet its statutory obligation under s. 18(3) of the Occupational Health and Safety Act . Litigation privilege can attach to information where the information is collected for the dominant purpose of preparing for litigation.

As the investigation was mandatory under the statute, the dominant purpose for the collection of the information was to meet that statutory requirement, not preparing for litigation. [ 14 ] On December 10, 2015, Suncor requested a brief extension to consider its options. On December 11, 2015, OHS advised Suncor by a written letter that: (

a) OHS was considering issuing an administrative penalty to Suncor in the amount of $5,000; (

b) Suncor’s failure to provide the refused information was impeding a fatality investigation; (

c) OHS requests a meeting with Suncor, to be held on December 17, 2015, in order to discuss the proposed administrative penalty: Affidavit of Robert Feagan, para 33 [Feagan’s Affidavit]. [ 15 ] The meeting scheduled for December 17, 2015 was held without resolving the divergent positions of both parties.

On December 21, 2015, Suncor re-affirmed its position on legal privilege; and on December 22, 2015, the Ministry imposed a $5,000 administrative penalty on Suncor. [ 16 ] On January 4, 2016, Suncor filed an originating application in this Court seeking injunctive and declaratory remedies to, inter alia , prohibit the Ministry from compelling the production of privileged documents and other records, or conducting interviews with Suncor’s investigators [Suncor Application]. [ 17 ] On January 12, 2016, the Ministry advised Suncor that its claims of legal privilege lacked an evidentiary foundation, and requested that Suncor identify the records over which it claimed privilege with sufficient particularity to allow the Ministry to consider its position.

By a letter dated March 2, 2016, Suncor provided “a list of records included in the Refused Information containing 8 sub- categories” and four binders of documents, labeled as “Suncor Documents (Non-Privileged or Privilege Waived”: see, OHS’s Brief, paras 19-20. [ 18 ] On January 29, 2016, Suncor filed a written brief in support of the Suncor Application, and the Ministry filed its response brief to the Suncor Application on February 5, 2016. [ 19 ] On February 4, 2016, the Ministry advised Suncor that it would bring its own Originating Application in the within Action.

Accordingly, on February 10, 2016, Suncor adjourned the Suncor Application sine die with the Ministry’s consent. Issues [ 20 ] There are three general, but interrelated, issues involved in this proceeding: (

i) Is Suncor entitled to claim litigation privilege over the information collected during its internal investigation? (ii) Are the documents and other records created or collected during Suncor’s internal investigation privileged? and (iii) Has Suncor provided sufficient justification for its claims to litigation privilege and solicitor-client privilege regarding the Refused Information? Law [ 21 ] Sections 18 and 19 of the OHS Act provide, inter alia , as follows: 18

(3) If an injury or accident referred to in subsection (2) occurs at a work site or if any other serious injury or any other accident that has the potential of causing serious injury to a person occurs at a work site, the prime contractor or, if there is no prime contractor, the contractor or employer responsible for that work site shall (

a) carry out an investigation into the circumstances surrounding the serious injury or accident, (

b) prepare a report outlining the circumstances of the serious injury or accident and the corrective action, if any, undertaken to prevent a recurrence of the serious injury or accident, and (

c) ensure that a copy of the report is readily available for inspection by an officer. ...

(5) A report prepared under this

section is not admissible as evidence for any purpose in a trial arising out of the serious injury or accident, an investigation or public inquiry under the Fatality Inquiries Act or any other action as defined in the Alberta Evidence Act except in a prosecution for perjury or for the giving of contradictory evidence. ... 19(1) If an accident occurs at a work site, an officer may attend at the scene of the accident and may make any inquiries that the officer

considers necessary to determine the cause of the accident and the circumstances relating to the accident.

(2) Every person present at an accident when it occurred or who has information relating to the accident shall, on the request of an officer, provide to the officer any information respecting the accident that the officer requests.

(3) An officer may, for the purposes of determining the cause of the accident, seize or take samples of any substance, material, product, tool, appliance or equipment that was present at, involved in or related to the accident. ...

(5) Any statement given under this

section is not admissible in evidence for any purpose in a trial, public inquiry under the Fatality Inquiries Act or other proceeding except to prove (

a) non-compliance with this section, or (

b) a contravention of section 41(3) in an action or proceeding under this Act. [ 22 ] The Supreme Court of Canada in Blank v Canada (Minister of Justice) , 2006 SCC 39 at para 28 , [2006] 2 SCR 319 [ Blank ], said: R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation privilege and solicitor-client privilege: It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two.

First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself.

Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate.

In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client). (“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65) [ 23 ] Litigation privilege is not confined to the court process and extends to regulatory proceedings: Ed Miller Sales and Rentals Ltd v Caterpillar Tractor Co , 1988 ABCA 282 , 90 AR 323 (Alta CA), cited in Thomson v Berkshire Investments , 2007 BCSC 50 at para 49 , 2007 CarswellBC 60 [ Berkshire Investments ].

Discussion Issue I: Is Suncor entitled to claim litigation privilege over the information collected during its internal investigation?

Ministry’s position [ 24 ] The Ministry (or OHS) argues that OHS Officers have implied authority to determine their own procedure to enable them to perform the functions assigned to them under the OHS Act , without the legislature detailing the particulars of that authority and how it may be applied: Ebsworth v Alberta (Human Resources and Employment) , 2005 ABQB 976 at paras 33-34 , 396 AR 345. [ 25 ] It submits that in circumstances where an investigation is mandated by a statute, claims of litigation privilege and the dominant purpose for obtaining investigative information should be carefully scrutinized. [ 26 ] OHS submits that the information collected by Suncor was for the purpose of meeting Suncor’s statutory obligation under the

OHS Act , s 18(3). And that “[a]s the investigation was mandatory under the statute, the dominant purpose for the collection of the information was to meet that statutory requirement, not preparing for litigation.” [ 27 ] The Ministry states that, from the questioning of Mr. Chell, it is “unclear whether there was some different investigation undertaken under section 18(3) of the Act from that investigation that Suncor deposes to in its affidavit”: Transcript of Proceedings, March 22, 2016, 8/2-4 [Transcript].

Suncor’s position [ 28 ] Suncor argues that litigation privilege applies in the context of an investigation in respect of regulatory proceedings, and when a regulatory agency undertakes an investigation that “could result in the prosecution of offences with [potential] consequences,” which include the imposition of penalties or sanctions, litigation has commenced: TransAlta Corporation v Market Surveillance Administrator , 2014 ABCA 196 at para 40 [ TransAlta ]; College of Physicians of BC v British Columbia (Information and Privacy Commissioner) , 2002 BCCA 665 at paras 73-74 , 23 CPR (4th) 185 [ College of Physicians of BC ]. [ 29 ] Suncor maintains that although it was a single investigation that it carried out regarding the Accident, Canadian courts have concluded that “the fact that an investigation is mandated by statute is irrelevant to the functional analysis of the lawyer’s role.

Lawyers must often undertake investigative work in order to give accurate legal advice. In this respect, investigation is integral to the lawyer’s function”: College of Physicians of BC at para 39 . [ 30 ] Based on the uncontroverted evidence of Mr. Chell, Suncor contends that the internal investigation it conducted regarding the Accident “was for the dominant purpose of preparing to respond to actual or potential litigation”: Suncor’s Brief, para 21(f)-(g).

Consequently, Suncor submits that notwithstanding the statutory obligation that requires it to carry out an investigation under the OHS Act , s 18, Suncor is entitled to claim litigation privilege, in light of the evidence before this Court on the dominant purpose of its investigation. Analysis [ 31 ] The general question here starkly relates to whether litigation privilege can exist to cover documents created in the process of a single investigation carried out in the context of a statutory requirement that an investigation must be conducted by the same entity claiming litigation privilege.

In other words, how does Suncor’s assertion of litigation privilege over information and records collected during an internal investigation interface with Suncor’s statutory obligation to conduct an investigation and prepare a report under OHS Act , s 18? [ 32 ] Obviously, the legislative provisions of the OHS Act , ss 18(3)(

a) and (

b) constitute regulatory requirements that Suncor should “ carry out an investigation into the circumstances surrounding the serious injury or accident ” as well as “ prepare a report outlining the circumstances of the serious injury or accident and the corrective action, if any, undertaken to prevent a recurrence of the serious injury or accident. ” These statutory obligations raise the possibility of another purpose or alternative motivation for the investigation that Suncor conducted regarding the Accident, alongside Suncor’s claim that the internal investigation was carried out in anticipation of litigation. [ 33 ] The decision of the British Columbia Supreme Court in Berkshire Investments is significantly relevant and instructive on this particular issue.

In that case, there was a complaint by an investor against his financial advisor, who was an employee of Berkshire Investment Group Inc [Berkshire]. As a result of the complaint, one of the senior management officers of Berkshire became concerned that there was a substantial risk of litigation from the complainant and that there was the possibility of regulatory action by the BC Security Commission and/or Mutual Fund Dealer’s Association of Canada [MFDA].

The senior manager contacted Berkshire’s external legal counsel to seek legal advice as to how to proceed. [ 34 ] Based on the structure prescribed by its legal counsel, Berkshire immediately commenced an investigation into the alleged misconduct of its employee. The purpose of this investigation was to prepare for anticipated litigation or regulatory proceedings against Berkshire by the affected investors (para 15). Notably, as a member of the MFDA, Berkshire was also required by the rules and regulations of the MFDA to investigate complaints from clients (para 16, emphasis added ).

Since Berkshire must comply with the rules and regulations of MFDA as its primary regulator, Berkshire contacted the MFDA to inform it of related developments. The MFDA then commenced a formal investigation during which it requested records, reports and analysis (para 37).

Based on the advice of its legal counsel and compliance department, Berkshire provided the requested information to the MFDA “in the expectation it would be held in confidence and under no expectation it would be required to be produced in civil litigation” (para 38). [ 35 ] The plaintiff in Berkshire Investments brought an application seeking an order that Berkshire provide a supplemental list of documents that was to include “reports, e-mails, notes and any electronic or written documentation arising out of the investigation into the conduct” of his financial advisor.

Berkshire refused to produce some of the documents over which it claimed both litigation privilege and solicitor-client privilege. [ 36 ] Interestingly, the plaintiff in Berkshire Investments argued that “Berkshire’s obligations pursuant to its internal policies and bylaws and the directives and policies of the MFDA to investigate and respond to complaints and report the complaints to the MFDA negates the suggestion that the documents were created for the dominant purpose of litigation [and as such] Berkshire has not satisfied the onus with respect to the dominant purpose of the documents”: Ibid at para 61). [ 37 ] In other words, the plaintiff in Berkshire Investments mounted an argument that because Berkshire had a regulatory obligation to conduct an investigation into the complaint, as mandated by MFDA’s regulations and rules, Berkshire was consequently

precluded from claiming litigation privilege over information created or collected as a result or in the course of that investigative process. [ 38 ] In my view, the argument of the plaintiff in Berkshire Investments – based on Berkshire’s obligation under MFDA’s regulations and rules – is analogous to that of the Ministry in the present application before me, which is that Suncor’s investigation is a statutory requirement (mandated by the OHS Act ), and as such, Suncor cannot claim that the investigation was carried out for litigation purpose. [ 39 ] In his decision, Goepel J held in Berkshire Investments that, from the evidence before the court, it was clear that after the first investor’s complaint, Berkshire commenced a detailed investigation into the activities of its agent, carried out the investigation with the assistance and guidance of legal counsel, and produced many documents in the course of the investigation.

Consequently, he found that the dominant purpose for the production of the documents was “the pending litigation, both civil and regulatory”: Ibid at para 67. [ 40 ] Significantly, Goepel J further stated (para 68): In making this finding, I have not overlooked that Berkshire had an obligation [under MFDA’s rules and regulations] to the MFDA to report and investigate complaints. That obligation cannot be viewed in isolation. Berkshire’s obligations to the MFDA were part of an integrated regulatory regime that exposed Berkshire to significant sanctions for misconduct.

Berkshire’s reports were the first step in a procedure which could ultimately lead to huge fines or suspensions. Berkshire’s “zone of privacy” extends to its MFDA reporting requirements . If it were otherwise, a litigant like Berkshire with reporting requirements to a third party [i.e. the MFDA], would rarely be entitled to claim litigation privilege and would be seriously prejudice[d] in defending itself against civil and regulatory claims.

Such a result would not be consistent with the rationale for litigation privilege [ Emphasis added ]. [ 41 ] Goepel J went on to clearly conclude that “the documents Berkshire [produced] as part of its investigation, are protected by litigation privilege.

Those documents are sheltered by a ‘zone of privacy’ and need not be produced”: Berkshire Investments at para 71 . [ 42 ] I agree with the opinion in Berkshire Investments . [ 43 ] It is vitally important to note that, first, in Berkshire Investments , MFDA as the regulatory body for Berkshire did not ask Berkshire to disclose documents and information it claimed legal privilege over; rather it simply accepted the reports presented by Berkshire “in the expectation it would be held in confidence and under no expectation it would be required to be produced in civil litigation” (para 38).

Second, the argument of the plaintiff, that Berkshire was not entitled to litigation privilege over some records produced in the process of an investigation mandated by the MFDA regulations and rules, was rejected by the BC Supreme Court. [ 44 ] Based on the analogy that the rules and regulations of the MFDA requiring investigation are mandatory for Berkshire in the same manner that the provisions of the OHS Act , s 18 requiring investigation are mandatory for Suncor, I adopt the reasoning and conclusion of the BC Supreme Court in Berkshire Investments that the fact that a single investigation has a dual purpose – regulatory and litigation – does not ipso facto extinguish nor abrogate a claimant’s right to legal privilege, where the claimant has been able to establish that the dominant purpose for conducting the investigation was in contemplation of litigation. [ 45 ] In my opinion, the legal principle that emerges from the decision in Berkshire Investments is that although Suncor has a statutory obligation under the OHS Act to conduct an investigation and prepare a report on the Accident for the Ministry/OHS, that obligation does not foreclose or preclude Suncor’s entitlement to litigation privilege for all purposes, particularly if the evidence demonstrates that Suncor had taken deliberate steps to cloak documents and information collected in the process of the investigation with the garb of privilege in anticipation or contemplation of litigation. [ 46 ] Denying Suncor its entitlement to claim litigation privilege over information created and/or collected during an investigation, because of an overlapping statutory obligation to investigate and report, would prejudice Suncor’s right to defend itself against any potential civil actions, criminal prosecutions or regulatory claims.

That result would defeat the policy justification and purpose of the law in relation to litigation privilege: Blank at para 28 ; Berkshire Investments at para 68 . [ 47 ] My conclusion above is also supported by the decision of the British Columbia Court of Appeal in Raj v Khosravi , 2015 BCCA 49 at paras 16-17 , where Smith JA, for a unanimous Court held that: [16] In applying [the “dominant purpose” test], it must be recognized that any particular document may have more than one purpose.

When a document is produced for dual or multiple purposes, one of them being litigation, and none of the purposes are dominant, the document should be disclosed. ... [17] A claim of privilege will succeed when a party can establish that a document produced for dual or multiple purposes, one of them being litigation, was produced for the dominant purpose of litigation . [ Emphasis added ]. [ 48 ] Therefore, I conclude that, if Suncor establishes that the dominant purpose of conducting the subject investigation was in contemplation of litigation, it would be entitled to claim litigation privilege over the documents and other records created or collected during the internal investigation, notwithstanding the statutory obligations under the OHS Act , s 18. [ 49 ] Thus, the next inquiry is to evaluate whether, in the circumstances of the matter before me in this application, Suncor has established that the information, documents and records collected or created during the internal investigation was produced for the dominant purpose of litigation?

Issue II: Are the documents and other records created or collected during

Suncor’s internal investigation privileged? Ministry’s position [ 50 ] As indicated earlier, the Ministry rejected Suncor’s assertion of privilege in a letter written to Suncor on December 4, 2015. In that letter OHS indicated that: This information was collected by [Suncor] in order to meet its statutory obligation under s. 18(3) of the Occupational Health and Safety Act ....

As the investigation was mandatory under the statute, the dominant purpose for the collection of the information was to meet that statutory requirement, not preparing for litigation [ Emphasis added ]. [ 51 ] Further, the Ministry submits that legal privilege – including litigation privilege and solicitor-client privilege – applies to communications, and does not extend to existing facts: TS (Re) , 2013 ABPC 309 at para 73 . [ 52 ] It argues that photographs, witness statements and notes taken in the context of an accident investigation are “fruits of an investigation”: R v Trang , 2002 ABQB 390 at paras 12 , 14, 315 AR 306 [ Trang ].

The mere incorporation of Suncor’s photographs, notes and witness statements and other relevant facts into privileged communications with its legal counsel does not make those records privileged: Ibid at paras 14-16. [ 53 ] OHS contends that it is impossible to “tell from the information provided by Suncor whether litigation privilege has been established”: OHS’s Brief, para 76. Suncor’s position [ 54 ] Suncor submits that the dominant purpose for undertaking investigation into the Accident was in contemplation of litigation and in order for legal counsel to provide legal advice. In his questioning, Mr.

Chell, Suncor’s legal counsel, confirmed that the “internal investigation requested [was] dual fold.” He stated that: One of the reasons is to be able to provide legal advice in respect of the incident, as well as in respect of the potential for future incidents. [And] there is also the litigation component, preparing effectively for the possibility that enforcement or sanctions are issued against the company [Transcript, 38/20-31]. [ 55 ] In support of its position, Suncor points to the evidentiary record before this Court, which indicates that a fatality had occurred at one of its sites, and its legal counsel undertook various steps to establish and assert legal advice and litigation privilege over its investigation.

Suncor notes that within “a few hours of the Accident occurring,” its legal counsel requested a privileged and confidential investigation based on his assessment that “litigation was a real and distinct possibility given the seriousness of the Accident, the potential for various penalties and sanctions under the OHS Act , and the fact that accident was being investigated by the RCMP and OHS Officers”: Suncor’s Brief, para 72. [ 56 ] Suncor compares the process it followed in conducting its investigation with other cases where the courts have determined that privilege existed: TransAlta ; R v Bruce Power Inc , 2009 ONCA 573 , 98 OR (3d) 272 [ Bruce Power ]; and Caterpillar Tractor Co v Ed Miller Sales & Rentals Ltd , 1988 ABCA 282 , 90 AR 323.

Suncor emphasizes that it tracked and adhered strictly to the protocol adopted in Bruce Power , being a case that involved an Occupational and Safety matter in Ontario. [ 57 ] Suncor contends that the only evidence before this Court regarding the dominant purpose of Suncor’s investigation is that of Mr. Chell, as the Ministry has neither provided any evidence to contradict Mr. Chell’s evidence nor successfully challenged Mr.

Chell’s evidence on questioning. [ 58 ] Finally, Suncor argues that while facts are not subject to claims of privilege, summaries or analysis of facts are privileged: Kusumoto, Re , 2006 ABASC 1680 at para 31 (WL) . In this case, Suncor maintains, it is not claiming privilege over facts, but claims privilege over the documents created and collected as part of its investigation.

Suncor observes that, contrary to the Ministry’s representation of the decision in Trang , that case stands for the principle that “a client, when asked a factual question, may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney”: Suncor’s Brief, para 101, citing Trang at para 15 . Analysis [ 59 ] The established legal test stipulates that a document is subject to litigation privilege if: (

a) the document was made specifically with existing or contemplated litigation in mind, and, (

b) the dominant purpose for its creation was to assist in that litigation: Sopinka, Lederman & Bryant, The Law of Evidence in Canada , 4th ed (Toronto: LexisNexis, 2014) at 990. [ 60 ] In Talisman Energy Inc v Flo-Dynamics Systems Inc , 2015 ABQB 561 at paras11-12 [ Talisman Energy ], Master Prowse held that where a claimant asserts litigation privilege over documents created during an investigation, the filing of affidavit evidence in support of its claim to privilege that the dominant purpose of the investigation was to assist in a contemplated litigation would suffice for the purpose of discharging the onus on the claimant to establish that “potential litigation was the dominant purpose for the investigation.” He concludes:

It is not necessary for [the claimant] to prove the negative. In other words, [the claimant] does not have to create a list of other possiblemotivations for the investigation and then disprove each such alternative motivation.

It is up to the respondents, in challenging [sworn]assertions regarding anticipated litigation, to cross-examine [the claimant’s] deponent, or through other means, to bring forwardevidence challenging [the claimant’s] assertion [Emphasis added]. [61] The majority of the Nova Scotia Court of Appeal in Hatch Ltd v Factory Mutual Insurance Company, 2015 NSCA 60 atpara 7 [Hatch Ltd], also held that the motions judge was entitled to consider the affidavit evidence before her in determining whetherlitigation was the dominant purpose for preparing the impugned documents. [62] In Raj v Khosravi, 2015 BCCA 49 at paras 15-18, the British Columbia Court of Appeal held that: [15] This Court adopted the dominant purpose test in Voth Brothers Construction

(1974) Ltd. v. North Vancouver School District44 Board of School Trustees (1981), (BC CA), 29 B.C.L.R. 114 (C.A.) at 117. [17] There is no absolute rule for determining whether litigation was the dominant purpose for the document’s production([Hamalainen (Committee of) v Sippola (1991), (BC CA), 62 BCLR (2d) 254 (BC CA)] at para. 25). A finding ofdominant purpose involves an individualized inquiry as to whether, and if so when, the focus of the investigation/inquiry shifted tolitigation. This is a factual determination to be made based on all of the circumstances and the context in which the document wasproduced.

As Wood J.A. explained in Hamalainen: [24] ...[T]here is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquirychanges. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined bythe facts peculiar to each case. [Emphasis added.] [18] ... It may occur while other investigations are being conducted and other documents are being produced with respect to relatedmatters that are not for the dominant purpose of litigation.

There is no legal requirement that every potential or conceivable purpose forthe creation of a document must be negatived before it can be found that the document was produced for the dominant purpose oflitigation.[Emphasis in Original]. [63] Turning to the present matter, it is compelling that, for the purpose of discharging Suncor’s onus as a claimant, its legalcounsel, Mr. Chell, deposed to Affidavit evidence, which is based on his personal knowledge. That Affidavit stated, inter alia: 6. On Sunday, April 20, 2014 ...

I received a telephone message from the [VP Legal Affairs – Operations] with Suncor [and] Iimmediately telephoned him... 7. [The VP Legal Affairs – Operations] advised me he had already spoken to representatives from Suncor’s environmental health andsafety group and requested a privileged and confidential investigation be commenced.

He had reached the conclusion litigation was a realand distinct possibility and that a thorough internal investigation, which would be privileged and confidential, would be needed toprovide Suncor with the necessary information required to provide proper and fulsome legal advice concerning the Accident and inanticipation of, or in contemplation of, potential litigation that could be brought against Suncor.

Some of the important factors leading tothis conclusion included the seriousness of the accident, the potential for various penalties and sanctions under the Occupational Healthand Safety Act (“OHS Act”), and the fact that the accident was being investigated by the RCMP and Alberta Occupational Health andSafety Officers (“OHS Officers”). I agreed with [VP Legal Affairs’] assessment as it was reasonable in the circumstances for Suncor toanticipate litigation, seek legal advice and assert privilege over its investigations. 8.

The kind of litigation anticipated primarily involved charges under the Alberta OHS Act which would be quasi-criminal in nature.... Inaddition, penalties imposed against Suncor could be substantial, and while it was early, we were not in a position to rule out thepossibility of charges under the Criminal Code or civil litigation arising from the Accident. 9.

As a result of our assessment of the information available regarding the Accident, on April 20, 2014 at 3:34 pm, in my capacity aslegal counsel for Suncor, I sent an email to certain employees of Suncor’s environment, health and safety group confirming LegalAffair’s request that they undertake an investigation into the incident and advising them of the purpose of the investigation and theprotocols to be followed for the purposes of their investigation. 10.

This email communication from me clearly recited the investigation’s privileged nature, its confidential character and that litigationwas under contemplation at that time. ... 12. My email communication included a direction that the internal investigation team members were required to conduct themselves inaccordance with [the attached] rules of engagement... See, Chell’s Affidavit, paras 7-10, 12. [64] I accept the affidavit evidence of Mr. Chell that outlined the circumstances under which Suncor anticipated the possibility oflitigation.

The courts have confirmed that affidavit evidence could be validly considered and relied upon to substantiate privilege claims,especially where the sworn evidence and facts are uncontroverted: Hatch Ltd at para 7; and Opron Construction Co Ltd v Alberta, 1989ABCA 279 at paras 8, 15, 100 AR 58. [65] The facts to which Mr.

Chell deposed in his Affidavit, in my view, objectively support the conclusion that, in thecircumstances – i.e. of the seriousness of the fatal Accident, the potential for various penalties and sanctions under the OHS Act, theRCMP investigation, and the OHS Officers’ investigation – it was reasonable for Suncor to have anticipated or contemplated that therewas a very good chance that litigation is possible, including the likelihood of regulatory prosecution by the OHS, laying of CriminalCode charges, or civil litigation.

[ 66 ] Further, my assessment of the Affidavit of Mr. Feagan (on behalf of the Applicant Ministry) reveals that the evidence contained therein does not contest or contradict the fact that Mr. Chell (on behalf of the Respondent Suncor) took the steps he deposed to in his affidavit as actions carried out in contemplation of litigation.

In this regard, the law is clear that it is not the responsibility of Suncor to disprove alternative motivations; instead, it is the onus of the Ministry or OHS to challenge sworn “assertions regarding anticipated litigation, to cross-examine [the claimant’s] deponent, or through other means, to bring forward evidence challenging”: Talisman Energy at paras 11-12. The Ministry has not met its onus in this case, as there was no basis in fact advanced by the Ministry to contradict Mr.

Chell in order to show that the privilege was not properly claimed by Suncor: Canada (Privacy Commissioner) v Blood Tribe Department of Health , 2008 SCC 44 at para 16 , [2008] 2 SCR 574 [ Blood Tribe ]. [ 67 ] Consequently, I find that the Ministry has failed to demonstrate in a satisfactory manner that Suncor did not carry out its internal investigation in contemplation of litigation. [ 68 ] Based on the uncontroverted affidavit evidence of Mr.

Chell, I find that, in the circumstances of the Accident and the course of actions undertaken by Suncor’s legal counsel – beginning on the same day the Accident occurred – the dominant purpose for Suncor’s conduct of the subject investigation into the Accident was in contemplation of litigation.

This finding invariably and logically leads to the collateral finding that, within the context of Suncor’s internal investigation that was carried out in anticipation of litigation, the information and documents created and/or collected during the internal investigation with the dominant purpose that they would assist in the contemplated litigation, are integrally covered by litigation privilege. [ 69 ] Interestingly, the OHS subsequently indicated to Suncor that it required the requested information as the deadline for prosecution was fast approaching: Chell’s Affidavit, para 37(e).

Although that development was later in time – and as such not directly relevant to the initial formation of Suncor’s anticipatory opinion that the OHS might explore regulatory prosecution – it serves, in hindsight, to confirm the reasonableness of Suncor’s perception that there existed a real probability of prosecution by the OHS at the time Suncor formed its opinion contemplating litigation. [ 70 ] Additionally, it seems to me that the provisions of the OHS Act , ss 18(3)(b) & (

c) is straightforward in its simple, but strict, requirement that obliged Suncor to “prepare a report” and “ensure that a copy of the report is readily available for inspection by an [OHS] officer.” On the face of things, these legislative provisions neither contemplated nor expressly authorized access to the individual author(

s) of the statutory report for an account of the process adopted in writing the report, excepting where as an individual s/he was “present at an accident when it occurred or [has] information relating to the accident”: OHS Act , s 19(2). This opinion is reinforced by the fact that the OHS, in the context of this particular Accident, also: (

i) has the broad statutory power under the OHS Act , s 19 to conduct an independent investigation into the Accident, (ii) had the opportunity to commence its investigation of the Accident on exactly the same day as Suncor on April 20, 2014, and (iii) over the subsequent months, was able to interview approximately 15 witnesses regarding the Accident. [ 71 ] Further, it seems to me that the “limited use immunity” provisions in the OHS Act , ss 18(5) & 19(5) are also indicative of the legislature’s intent to extend some form of privilege to the investigation conducted by Suncor and the statutory report prepared through that process.

In my view, the denial of litigation privilege to Suncor over information obtained through the same investigation that essentially underpinned the

section 18 statutory report, would fly in the face of the legislature’s intention to make that statutory report inadmissible “as evidence for any purpose in a trial arising out of the serious injury or accident, an investigation or public inquiry under the Fatality Inquiries Act or any other action as defined in the Alberta Evidence Act except in a prosecution for perjury or for the giving of contradictory evidence” ( OHS Act , s 18(5)). [ 72 ] In the end result, I find that Suncor has established that the dominant purpose of carrying out its internal investigation was in contemplation of litigation.

The net effect of this finding is that information, documents and records produced for the dominant purpose of supporting the contemplated litigation, and collected during the internal investigation, are also covered by litigation privilege. [ 73 ] In terms of the distinction between “fact” and “communication,” I do note that the Supreme Court of Canada in Maranda v Richer , 2003 SCC 67 at para 31 , [2003] 3 SCR 193, admonished courts to be alert to “the fineness of that distinction and the risk of eroding privilege that is inherent in using it.” Specifically, the Supreme Court concluded that “[t]he distinction between “fact” and “communication” is often a difficult one and the courts should be wary of drawing the line too fine lest the privilege be seriously emasculated,” referencing John Sopinka, Sidney N Lederman and Alan W Bryant, The Law of Evidence in Canada , 2nd ed (Toronto: Butterworths, 1999) at 734, §14.53.

See also, Universal Sales, Limited v Edinburgh Assurance Co Ltd , 2009 FC 151 at paras 20-21 , 341 FTR 185. [ 74 ] This Court is equally alert to the principle that “where a lawyer exercising legal knowledge, skill, judgment and industry has assembled a collection of relevant copy documents for his brief for the purpose of advising on or conducting anticipated or pending litigation he is entitled, indeed required, unless the client consents, to claim privilege for such collection and to refuse production”: Blank at para 62, 64 ; College of Physicians of BC at para 54 . [ 75 ] Based on the legal principles outlined in the preceding paragraphs, the identification and separation of what constitute “facts” as distinctive from “communications,” in the context of the within proceeding, would be addressed by this Court in the manner determined below in Issue III. [ 76 ] I will now turn to consider Issue III.

Issue III: Has Suncor provided sufficient justification for its claims to legal privilege regarding the Refused Information?

Ministry’s position [ 77 ] The Ministry submits that it has requested the Refused Information, collected during the investigation that Suncor conducted after the Accident, pursuant to the OHS Act , s 19. A bare and blanket claim of litigation privilege or solicitor-client privilege by Suncor could not exclude the provision of information relating to the circumstances and cause(

s) of the Accident or the corrective action undertaken by Suncor to prevent a re-occurrence. Specific evidence, and not general statements that all documents were prepared for the dominant purpose of litigation, must be provided to substantiate privilege claims: TransAlta Corporation v Market Surveillance Administrator , 2015 ABQB 180 at para 45 . The Ministry contends that Mr. Chell’s affidavit evidence has failed to substantiate Suncor’s privilege claims. It remains unclear from his affidavit and Questioning-on-Affidavit whether Mr.

Chell was providing legal advice or was acting as an investigator while providing directions to various individuals within Suncor: Transcript, 7/1-26) [ 78 ] The Ministry argues that the list of records provided by Suncor contain very limited detail, and in all instances contained generic descriptions of the items, the author and recipient: OHS’s Brief, para 22.

Thus, OHS seeks better and sufficient information respecting Suncor’s privilege claims, and particularity regarding some individually itemized documents “in the same way as would be expected in a civil litigation [when litigants] express themselves in an affidavit of records as to what they were claiming privilege over and why”: Transcript, 5/34-39. The unsworn descriptions contained in the lists of documents provided by Suncor on March 3, 2016 are not evidence or sufficient substantiation of Suncor’s claims. [ 79 ] OHS contends that Suncor bears the onus of demonstrating the validity of its privilege claims.

And to discharge that onus, Suncor must: (

i) itemize the records over which it claims privilege; (ii) “provide a sufficiently particularized description of each such record to enable proper consideration of the privileges claimed, including at least in this case: (

a) the date and time each record was created; (

b) the sender/author and recipient/addressee of each record; (

c) the subject matter of the record; and (iii) identify the nature of privilege being claimed for each record and the basis for the privilege claimed”: OHS’s Brief at paras 48-50. [ 80 ] The Ministry says that the information provided by Suncor to date regarding solicitor-client privilege is insufficient to enable OHS to assess whether: (

a) a client has sought legal advice from a lawyer, (

b) the lawyer has provided legal advice in a professional capacity, (

c) the communications between the client and lawyer relate to legal advice, and (

d) the communications were made in confidence: R v McClure , 2001 SCC 14 at para 36 , [2001] 1 SCR 445 [ McClure ]. [ 81 ] In terms of litigation privilege, the Ministry submits that, from the information provided by Suncor, it is impossible to identify “when many documents were created, by whom, or for what purpose”: OHS’s Brief at para 76. In sum, from the Ministry’s perspective, the issue in this application is: Whether Suncor has properly substantiated its claims to privilege, and whether that information is not producible to the Ministry, pursuant to the accident?: Transcript, 4/1-3.

Suncor’s position [ 82 ] Suncor says that the Ministry has been unable to articulate the details about what information is missing in the records it had already produced.

It seeks details of what would enable OHS to “understand the circumstances of the accident that would be in possession of Suncor, other than the privileged records”: Suncor’s Brief, para 12. [ 83 ] Suncor maintains that the law permits it to bundle and categorize records, as “bundling can be helpful [in avoiding] the necessity of having to describe each record individually”: Canadian Natural Resources Limited v ShawCor Ltd , 2014 ABCA 289 at paras 8-9 , 48, 580 AR 265 [ CNRL ].

The listings provided to the OHS, Suncor argues, meet the test prescribed in case law and was responsive to the Ministry’s request for “sufficient description [that] include the type of record, the date and time it was created, the sender/author and recipient/addressee, and the subject matter”: see, Feagan’s Affidavit, Exh ‘P.’ [ 84 ] Suncor submits that the list of documents “assigned a number to each record, included the dates on which the records in question were created (where such dates were available, and where not available indicated the record was created post-incident), the nature of the record, title/role of the author/recipients as applicable, the type of legal privilege(

s) claimed over each record, and a brief description of the basis for the claims of legal privilege(s)”: Suncor’s Brief, para 78.

Suncor explains that it bundled the records into six categories, and provided the descriptions of the subject matter and examples of the type of information contained within each category. [ 85 ] In Suncor’s view, if it provides more details or descriptions it “risks inadvertent disclosure of privileged information.” The Alberta Court of Appeal has held that “the obligation to provide sufficient information to indicate how a record fits within the claimed privilege does not require a degree of particularity that would defeat the privilege”: CNRL at para 56; Dorchak v Krupka , 1997 ABCA 89 at para 36 , 196 AR 81 [ Dorchak ].

Suncor contends that it would suffer prejudice if its privileged communications are shared with the OHS: R v Bruce Power Inc , 2009 ONCA 573 at paras 48-49 , 98 OR (3d) 272 [ Bruce Power ]. [ 86 ] Suncor submits that it has discharged its onus to establish that the documents are privileged. The Affidavit of Mr. Chell, which has not been contradicted explained the context and circumstances of how the investigation was conducted, as well as how the documents were created.

As a claimant, Suncor is not required to prove a negative; and as such, the onus shifts on the Ministry to disprove Suncor’s assertion and, based on facts, “show that the privilege was not properly claimed”: Blood Tribe at para 16 ; Talisman Energy at para 12. Analysis [ 87 ] The core question, at this point, relates to the sufficiency of Suncor’s grounds for claiming legal privilege over each of the

Refused Information, and whether Suncor has satisfactorily explained that it should not disclose the Refused Information.

This issue engages the question of whether Suncor has described the Refused Information sufficiently to OHS in a manner that would enable OHS to determine that Suncor is not required to disclose the information. [ 88 ] In other words, has Suncor established that the Refused Information are either created for the dominant purpose of supporting the litigation it contemplated (litigation privilege) or created in the process of communications between Suncor and its solicitors (solicitor-client privilege)?

Solicitor-client privilege [ 89 ] On the issue of solicitor-client privilege, the uncontroverted affidavit evidence of Mr. Chell demonstrates that: 15. On April 20, 2014, I also contacted David G. Myrol, Barrister and Solicitor, of McLennan Ross LLP, for the purposes of retaining his firm to assist with providing legal advice arising from the Accident and to defend Suncor in the event OHS charges were laid against Suncor. Mr. Myrol is an experienced defence lawyer in OHS matters and Suncor retained him to supplement the legal advice I was providing. Throughout the course of the investigation, Mr.

Myrol and I provided Suncor with legal advice and direction in respect of the Accident. ... 17. On April 23, 2014 an in-person meeting with all internal investigation team members was held [at] Suncor’s Oilsands operations, near Fort McMurray. I attended this meeting and spent the first half-hour reviewing why the investigation was privileged and confidential, as well as reiterating the protocols that needed to be followed to ensure privilege is not waived. 18.

I, as legal counsel employed by Suncor, had a high degree of involvement and oversight in the investigation, which included attending most of the investigation team meetings, as well as regular debriefings and updates to management. ... 21. Legal advice was given to both the investigation team throughout the investigation process, as well as to senior management in relation to the findings of the internal investigation team. 22.

The legal advice of external counsel was also sought and provided frequently during the course of the investigation. 23. ...The purpose of the internal investigation was to gather the necessary facts, as litigation was reasonably contemplated, to allow legal counsel to provide legal advice to Suncor. [ 90 ] Based on the evidence of Mr. Chell, as excerpted in the preceding paragraph, I find that Suncor has demonstrated that it sought legal advice from both its internal and external lawyers, who provided legal advice, in their professional capacities, to Suncor.

On the same basis, I find that there were certainly communications between Suncor, through its internal legal counsel, and Suncor’s external lawyer in relation to legal advice regarding the fatal Accident as well as its investigation, and that these communications were made in confidence: McClure at para 36 . [ 91 ] What is unclear at this point is the scope of the communications – including the records created in the process – between Suncor and its lawyers.

However, in this respect, the law is clear that Suncor’s obligation to provide sufficient information indicating how a record fits within the claimed privilege does not require a degree of particularity that would, itself, defeat the privilege: CNRL at para 56; Dorchak at para 36 . [ 92 ] Accordingly, given the volume of the materials over which Suncor claims solicitor-client privilege and refused to produce, the assessment of which particular documents or records were created during these periods of confidential communications between Suncor and its solicitors is directed to the Court of Queen’s Bench Case Management Counsel, to act as referee [“Referee”].

In this capacity, the Referee would determine and set the process for conducting the initial assessment and identification of the records, documents and information regarding the Accident in terms of whether Suncor can or cannot claim solicitor-client privilege. Following such assessment, the Referee will make recommendations for this Court to consider and approve as to which of the records, documents and information regarding the Accident are covered by solicitor-client privilege.

Litigation privilege [ 93 ] On the issue of litigation privilege, I had earlier concluded that, notwithstanding the statutory requirement of an investigation under the OHS Act , s 18, Suncor has established that the dominant purpose of carrying out its internal investigation was in contemplation of litigation; and that the information, documents and records created for the dominant purpose of supporting the contemplated litigation, which were collected during the internal investigation, are also covered by litigation privilege. [ 94 ] The outstanding issue regarding Suncor’s claim of litigation privilege is the determination of which particular records, documents or information were created for the dominant purpose of supporting the contemplated litigation, and collected as such during the internal investigation. [ 95 ] Similarly, because of the volume of materials over which Suncor has claimed litigation privilege, the assessment of which particular records, documents or information fall into the litigation privilege category, as claimed by Suncor, is directed to the Referee, and to follow the same procedure as outlined above in paragraph 92 of this Decision, regarding Suncor’s ability to claim solicitor-client

privilege. Thus, the Referee would have the authority to determine and set the process for conducting the initial assessment as well as identification of all records, documents and information regarding the Accident that are covered by litigation privilege. Subsequently, the Referee will make recommendations to this Court for its consideration and approval. [ 96 ] These steps are necessary from the perspectives of judicial economy and avoidance of prejudice to the party claiming legal privilege.

In Bruce Power at para 48 , the Ontario Court of Appeal succinctly captured how, in an adversarial litigation, prejudice and disadvantage may result to a party claiming legal privilege where the opposing party has been unjustifiably afforded the opportunity of reviewing a potentially privileged information. Armstrong JA, for a unanimous ONCA, observed: [I]t would be difficult, if not impossible, for a witness who has read the report to erase its contents from his or her consciousness.

Moreover, it would be difficult, if not impossible, for the court to determine what effect the report may have had on a witness’s testimony and whether the prosecutor’s strategy has been indirectly, at least, affected by his witnesses having read the report. In the circumstances of the present application, I cannot agree more with Armstrong JA’s statement. Disposition [ 97 ] In the end result, I direct that within 30 days of the release of this Decision, Suncor meet with the Referee who shall act as referee vested with the authority to determine and set the process for the conduct of the directed assessment.

Accordingly, Suncor shall provide the Refused Information to the Referee and identify which records, information and communications it claims are either covered by litigation privilege or solicitor-client privilege. Suncor shall then, in accordance with the process determined and set by the Referee, provide written and/or oral submissions, in a hearing as required, to the Referee explaining the evidentiary basis for such claims to the Referee.

Subsequently, the Referee will make recommendations to this Court for its consideration and approval. [ 98 ] In this way, prejudice to Suncor, which might otherwise result where/if the Ministry is permitted to review the contents of Suncor’s Refused Information in detail, would be avoided. Heard on the 22nd day of March, 2016. Dated at the City of Edmonton, Alberta this 9 th day of May, 2016. Don J. Manderscheid J.C.Q.B.A. Appearances: Derek A Cranna Sharon A Roberts Field LLP for the Applicant

David Myrol McLennan Ross LLP for the Respondent, Suncor Energy Inc Mona Duckett, QC Dawson Duckett Shaigec & Garcia for 10 named Respondents (excluding Catherine Canning) Marshall Hopkins Fix & Smith Office for the Respondent, Catherine Canning