Suncor Energy Inc. v. Her Majesty the Queen in the Right of Alberta

(Alberta) (Civil) (By Leave)


Civil procedure - Civil procedure – Privilege – Whether litigation privilege attaches to documents gathered or copied, but not created, for dominant purpose of litigation – Whether dominant purpose of internal investigation is preparation for litigation sufficient to establish litigation privilege over information and material created or collected during investigation.


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On April 20, 2014, a Suncor employee was fatally injured at a worksite near Fort McMurray. Occupational Health and Safety (“OHS”) officers issued a stop-work order that day. Immediately after the accident, anticipating litigation, Suncor began an internal investigation and threw a privilege blanket over all information pertinent to its investigation. OHS issued demands for production of information under the Occupational Health and Safety Act, R.S.A. 2000, c. O-2. Suncor provided OHS with a report of its investigation, as well as materials that pre-dated or coincided with the incident since such materials could not have been prepared in contemplation of litigation, but it asserted solicitor-client privilege and/or litigation privilege over materials created or collected in the course of its internal investigation after the accident. Her Majesty the Queen in Right of Alberta brought an application seeking an order that Suncor provide the refused materials and allow OHS to interview Suncor’s internal investigators, or provide further particulars about the claims of privilege.

The chambers judge held that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation, ordering Suncor to provide previously-refused documents and make submissions to a referee, who would then assess the claims of privilege and provide recommendations to the court. Relying on Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 SCR 521, and Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 SCR 555, as well as Canadian Natural Resources Limited v. ShawCor Ltd., 2014 ABCA 289, the Court of Appeal allowed Alberta’s appeal, in part, finding the chambers judge erred in his determination about the dominant purpose of Suncor’s investigation, ordering the referee to make recommendations to the court after examining the documents and hearing the submissions of both parties.