By Dan Birch
The story has all the makings of a compelling Hollywood flick: a confidential, privileged report a company had been assured would be destroyed finds its way into the hands of a provincial inspector an...
The story has all the makings of a compelling Hollywood flick: a confidential, privileged report a company had been assured would be destroyed finds its way into the hands of a provincial inspector and a Crown prosecutor after a meeting with a company insider.
But this is no script. These are the facts of a recent Court of Appeal for Ontario case that touched on the status — privileged or not — of accident investigation reports produced by companies. In R.v. Bruce Power Inc., the court sought to determine the appropriate course when privilege is abused.
Notably, the case affirms that when an employer “has taken the important step of protecting a sensitive, detailed internal accident investigation report properly with solicitor-client privilege,” it cannot be seized by Ontario’s Ministry of Labour (MOL), says Jeremy Warning, a senior associate at Heenan Blaikie LLP in Toronto and a former lawyer with the MOL. “Ensuring that probing and detailed internal accident investigations remain confidential and are not used by [oh&s] enforcers and Crown prosecutors to advance their case is a key element in an employer’s accident response plan.”
Apart from its intrigue, the case offers guidance on how employers can best go about establishing and maintaining privilege over sensitive documents.
The narrative begins at Bruce Power’s nuclear plant in Tiverton, Ontario. On January 21, 2002, an employee of subcontractor Vipond Inc. suffered serious injuries when he fell 8.4 metres through an opening in a walkway, Justice Robert Armstrong, writing on behalf of the three-judge panel, notes in his July 17 decision. An MOL inspector attended the scene and began his investigation that very day.
Immediately following the incident, in-house lawyers contacted outside counsel for legal guidance in anticipation of charges under Ontario’s Occupational Health and Safety Act being pursued, which ultimately occurred. Acting on that advice, Bruce Power launched its own investigation.
The utility’s investigation team included a representative from the Power Workers’ Union. Each team member was bound by the same terms of reference, which “expressly provided that the investigation was undertaken in contemplation of litigation and that all documents created during the investigation, including the investigation report, were to be placed in the custody of Bruce Power’s legal department where their confidentiality would be maintained,” the ruling notes.
A copy of the draft investigation report, clearly marked “confidential,” was sent to each team member, along with written instructions to keep the information private and, eventually, to return or destroy the personal copy.
Initially, the union representative pledged to destroy his copy, but later informed the inspector that the report existed and suggested the MOL demand a copy from Bruce Power. The utility’s lawyers got wind of the exchange and informed the inspector the report was privileged. The inspector took no further steps to obtain a copy from the company.
It was only until five months before the start of Bruce Power’s trial that the utility’s legal counsel learned the Crown possessed a copy of the internal report and planned to use some of its contents as evidence against the company.
But how did the Crown come to possess the report? The ruling says in April of 2004 the MOL inspector and Crown prosecutor visited the union representative at his home.
The Crown ended up with a copy of the report, although it has not been established that the information had been requested. What is clear, however, “is that the inspector was fully aware, since early 2002, that the document was subject to a claim of privilege,” Justice Armstrong writes.
On November 15, 2004, the opening day of trial, Bruce Power requested a stay of proceedings, alleging the Crown had infringed its rights to a fair trial pursuant to the Canadian Charter of Rights and Freedoms. The trial judge, Justice of the Peace Sharon Woodworth, agreed the report was privileged and its use by the Crown was unfair. In staying the charges against Bruce Power, Woodworth noted that “no other remedy is reasonably capable of removing that prejudice.”
That finding, though, did not stand, with the Crown successfully arguing before the Ontario Court of Justice to reverse the staying of charges. Justice Julia Morneau ruled in November, 2007 that the lower court went too far. Instead of staying the charges, Justice Morneau found that Woodworth should have excluded the privileged report’s admission as evidence, but still permitted the trial to proceed.
Bruce Power then appealed to Ontario’s high court. Justice Armstrong noted the case posed two primary questions: One, when the Crown comes into possession of a privileged defence document, “does the accused bear the burden of proving actual prejudice or will prejudice be presumed?” And two, “in such circumstances, must the charges be stayed or is a lesser remedy appropriate?”
On the first question, Justice Armstrong ruled prejudice should have been assumed. “It would be difficult, if not impossible, for the [trial] 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,” he wrote.
With regard to staying charges, such an action is generally “the remedy of last resort for the purpose of curing the prejudice,” he noted. “Common sense suggests that every breach of solicitor-client privilege does not attract the ultimate remedy. Some breaches of privilege are trivial.”
But in this instance, the trial judge was correct in staying the charges, Justice Armstrong determined.
“Privilege is a foundation of Canadian law, entrenched in the Canadian Charter of Rights and Freedoms,” says Lisa Gallivan, a partner at Stewart McKelvey in Halifax. Its purpose is to “allow for free and frank discussion for the purpose of obtaining skilled, professional legal advice without fear that confidences will be later disclosed and used against an individual,” Gallivan notes.
Internal accident reports may be protected by two types of privilege, possibly at the same time, Warning suggests. Although “complimentary,” there are “important differences,” he points out.
One type, solicitor-client privilege, applies to all communications between a lawyer and client and never expires. The other type, contemplated litigation privilege, can apply to communications that “do not involve a lawyer but occur for the purpose of preparing for reasonably apprehended litigation,” he says. This type “expires when the litigation has ended or is no longer reasonably apprehended.”
It is the courts that ultimately declare whether or not information is privileged; with Bruce Power, it was determined both types applied.
Brian Thiessen, a partner at Blake, Cassels & Graydon LLP in Calgary, points to a 2000 Alberta case where contemplated litigation privilege was denied. In Terroco Drilling Ltd. v. Almac Machine Works Ltd., Terroco Drilling sought privilege over safety inspection reports compiled by a consultant hired following an incident. The reports were intended to meet regulatory requirements, determine incident cause, and resolve insurance issues.
The judge ruled privilege did not apply because “litigation was not the dominant purpose of the reports, nor did the purpose of the reports mature to that of dominantly being for litigation as time passed,” Thiessen says.
Dan Birch is editorial assistant of OHS CANADA.
The court sought to determine the appropriate course when privilege is abused.
A DIFFERENT SCRIPT
The outcome for subcontractor Vipond Inc., a Mississauga, Ontario-based manufacturer and supplier of fire protection systems, was far different than that of Bruce Pow
Following a trial in early 2005, Vipond was handed a $120,000 fine for its failure, as an employer, to “ensure an appropriate guardrail was used where a worker had access to the perimeter or an open side of a work surface and was exposed to a fall of 2.4 metres or more,” Ontario’s Ministry of Labour (MOL) reports.
On January 21, 2002, two Vipond workers were walking single file along a narrow walkway at the Bruce Power plant when the lead worker fell through an opening and landed on an iron grated platform, the MOL notes. The worker was seriously injured and unable to work for seven months.
The MOL investigation determined the workers were unaware that an opening had been created when other workers had earlier removed a section of the grated flooring while dismantling some scaffolding in the area.
SET THE SCENE
Steps can be taken to establish and maintain privilege over internal accident reports, says Brian Thiessen, a partner at Blake, Cassels & Graydon LLP in Calgary. Interview notes, e-mails and other records generated following an incident should be marked as “privileged and confidential” and “prepared in contemplation of litigation” to serve as “an indication of the intention of the individual who created the document and a red flag for the document on any subsequent document discovery process,” Thiessen advises.
Among other things, employers should consider doing the following:
• Ensure the internal report is prepared at the direction of legal counsel, who should make this request “by e-mail or correspondence before materials are gathered and the report is prepared,” says Jeremy Warning, a senior associate at Heenan Blaikie LLP in Toronto.
• Inform all people interviewed as part of the internal investigation that it “is for the purpose of anticipated litigation and that the information they provide will be confidential and for the use of legal counsel,” Warning says.
• Have counsel request that any external expert “prepare two reports: one which specifically provides answers to issues raised by the authorities, and another privileged report which provides answers to any internal issues,” Thiessen says.
• Never provide or disclose a full report to “third parties unless there is a guarantee that the document will maintain its confidential and privileged status,” says Lisa Gallivan, a partner at Stewart McKelvey in Halifax. Increasingly, Warning notes, employers are finding that provincial and federal inspectors are demanding production of reports prepared by companies. Regulators may be looking for any number of things, he says, including witness statements, admissions of fault by an employer, accident scene photographs, conclusions from outside experts and the company’s defence strategy.
Losing control of internal reports, after assurances of confidentiality have been received, “could have a long-term and chilling impact on the company’s ability to conduct future incident investigations and, in turn, protect the company’s interests and defend itself,” Gallivan cautions.