Hands off privileged accident reports: Court

A new court ruling will prevent the Ontario Ministry of Labour from seizing employers’ internal accident investigation reports, so long as they are protected by solicitor-client privilege.

“Companies that do avail themselves of solicitor-client privilege when they’re preparing a really detailed, no-holds-barred, no-stone-left-unturned investigation report are going to be able to keep that report confidential,” said Cheryl Edwards, national lead of law firm Heenan Blaikie’s occupational health and safety and workers’ compensation group.

In R. v. Bruce Power Inc., the Ontario Court of Appeal found the Crown’s seizure of a solicitor-client privileged report violated Bruce Power’s right to a fair trial. All Occupational Health and Safety Act (OHSA) charges against Bruce Power and two supervisors were stayed.

The issue started on Jan. 21, 2002, when a worker was seriously injured in a fall while working at the Bruce “B” generating station in Bruce County, Ont. Bruce Power’s lawyer requested the nuclear power station conduct an investigation into the accident and prepare a confidential report to be used to provide legal advice in the defence of anticipated charges under the OHSA.

During the Ministry of Labour investigation, the government officer became aware of the report and ordered it be turned over. Bruce Power informed the officer the report was privileged and the officer let the matter go.

The Ministry of Labour charged Bruce Power with three offences under the OHSA. Two supervisors were also charged with one offence each. During trial preparations, a member of Bruce Power’s accident investigation committee gave a copy of the internal report to the Ministry of Labour officer and the Crown prosecutor.

The company and the two supervisors filed a motion with the trial judge alleging the report was subject to solicitor-client privilege and the Crown’s seizure of the report violated their rights to a fair trial.

The court found the report set out items that could be used to the disadvantage and prejudice of the defendants and those items were intended to be ­privileged. It stayed all charges against the defendants. The Crown appealed and the Ontario Court of Justice set aside the stay of proceedings but prohibited the Crown from using the report at trial.

Bruce Power filed an appeal with the Ontario Court of Appeal, which overturned the Ontario Court of Justice’s decision. In its ruling, the court held solicitor-client privilege is fundamental to the administration of justice in Canada and closely linked to the right to a fair trial.

Information in the report could be used to the detriment of the defendants and a witness would not be able to erase the contents of the report from his consciousness, found the court. Because the Crown hadn’t shown how it had taken steps to prevent prejudice, the stay of proceedings should be restored, ruled the court.

“This (ruling) will hopefully bring to light the availability of this strategy that employers are legally entitled to use at the time of a workplace accident,” said Edwards.

An employer has an obligation to co-operate with the Ministry of Labour’s investigation, including answering all questions and sharing relevant documents such as training manuals and health and safety policies, said Edwards.

“But what they don’t have to hand over on a silver platter is their own internal analysis,” she said.

Solicitor-client privilege applies to confidential communications between a lawyer and client. While employers don’t have to retain a lawyer on every workplace accident, if one is critical or fatal, a lawyer should be consulted prior to conducting an internal investigation to find out how to protect the investigation report, said Edwards. (See sidebar for more details.)

An employer is obligated to inform the Ministry of Labour when there has been a critical or fatal workplace accident and is required to submit a “bare bones” accident report, said Edwards. This report includes the name of the injured or killed worker, the type of equipment involved, the names of any witness and the name of the treating physician.

“It’s a very delicate balancing act that employers and managers are always engaged in when they have an accident they’re required to report,” she said.

Most employers conduct a detailed, internal investigation to uncover the cause of an accident and how to prevent future accidents, as well as develop a potential defence in case of prosecution.

For at least the past 10 years, Ministry of Labour inspectors have been asking employers to hand over internal investigation reports, said Edwards. In the past year, she has even seen them asking for the reports when employers have claimed solicitor-client privilege.

“In well over 50 per cent of the cases we see, there is an internal report that (Crown prosecutors) rely on in some way,” she said. “Not only will they ask the employer to produce a detailed internal investigation report they know exists, but I’ve seen cases where they will actually ask the employer to prepare a detailed report and then hand it over.”

This is called “conscripted evidence,” where a defendant is asked to participate in the creation of incriminating evidence, and is a violation of the Charter of Rights and Freedoms, said Edwards.

Sometimes an employer wants to hand over the internal report, either because it shows the employer did everything right or because, in the case of a public sector organization, it wants to be transparent with the government and the public, said Edwards.