In R. v. Bruce Power, the Ontario Court of Appeal confirmed an Ontario Court of Justice ruling that a workplace investigation report (the “Report”) completed after a workplace injury was protected by both solicitor client and litigation privilege. Further, the Court of Appeal stayed the charges against Bruce Power, represented by Mark Contini and David Cowling of Mathews Dinsdale, under the Occupational Health and Safety Act (“OHSA”) because the Ministry of Labour (“MOL”) improperly obtained the privileged Report.
In this case, an employee of a subcontractor suffered an injury at the premises of Bruce Power. Immediately after the accident Bruce Power was advised by its internal and external lawyers to commence an investigation. The investigation was conducted with a team composed of both management and union employees. Terms of Reference were produced for the investigation which expressly stated that all documents created during the investigation, including the Report, were confidential and created in anticipation of charges under the OHSA. All members except a union member of the investigation team returned their copies of the Report to Bruce Power’s legal department. The member that did not return his copy of the Report undertook to destroy the Report, but later resiled from his undertaking.
The MOL Inspector was made aware of the Report by the member of the Investigation team that did not return his report and requested Bruce Power to disclose the Report. Bruce Power advised the Inspector that the Report was privileged. Subsequently, Crown Counsel and the Inspector obtained the Report from the member of the investigation team that did not return his Report.
The Court of Appeal confirmed that the Report was protected by both solicitor client and litigation privilege even though the Report was primarily informational and did not contain any legal strategy or thoughts or opinions of legal counsel. However, the Court acknowledged that the Report contained items that could be used to the disadvantage and prejudice of the defendants.
Important factors that led the Court to conclude that the Report was privileged was that counsel for Bruce Power continually stressed with the members of the investigation team that the Report was prepared in anticipation of litigation and that the Report was not to be released to anyone outside of the legal department. Also, counsel for Bruce Power attended a meeting in order to explain the meaning of the document and the privilege that would attach to it.
The Court also confirmed the Justice of the Peace’s decision to stay the charges against Bruce Power. The Court held that there was a rebuttable presumption of prejudice if the Crown comes into possession of a defence document that is protected by privilege. It was held that the Crown did not rebut the presumption of prejudice and that the most appropriate remedy was a stay of the charges as there was no lesser remedy to cure the breach of privilege in this case.
Therefore, if your organization is encountering a situation where it is contemplating the completion of an investigation please consult with your Mathews Dinsdale lawyer to discuss how the results of the investigation can be protected by privilege.
For a copy of the case, please refer to the following link: