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CIVIL PROCEDURE - Discovery - Production and inspection of documents - Privileged documents - Documents prepared in contemplation of litigation - Solicitor-client privilege

Tuesday, July 18, 2017 @ 7:48 AM  

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Appeal by the provincial Crown from an order referring Suncor's privilege claim to a referee. A Suncor employee was fatally injured at a worksite. Immediately following the accident, Suncor conducted an internal investigation in anticipation of litigation. The Crown's occupational health and safety officers issued demands for production of information. Suncor produced its investigation report and materials that predated or coincided with the incident. Suncor asserted solicitor and client privilege and/or litigation privilege over all materials created or collected in the course of its internal investigation following the accident. The Crown applied for an order for production of the refused materials. The chambers judge ruled that the dominant purpose of Suncor’s internal investigation was in contemplation of litigation. The judge ordered Suncor to meet with a referee who would assess privilege and provide recommendations to the Court. The Crown appealed.

HELD: Appeal allowed in part. The chambers judge erred in finding the dominant purpose of Suncor’s investigation was in contemplation of litigation so as to clothe all material created and/or collected during that investigation with legal privilege. In addition, the judge erred in finding that the documents were sufficiently described to allow an assessment of the privilege claims. Suncor's privilege claims were not sufficiently particularized to identify whether material was created in contemplation of litigation, or merely collected for that purpose. Suncor was required to independently distinguish the nature of the privileged claim and the evidentiary basis for such claims in order to permit meaningful assessment. Although there was no error in invoking the referee process to determine privilege claims, the Crown should have been granted the right to make submissions to the referee. The order was varied accordingly.

Alberta v. Suncor Energy Inc., [2017] A.J. No. 684, Alberta Court of Appeal, R.L. Berger, J. Watson and S.J. Greckol JJ.A., July 4, 2017. Digest No. TLD-July172017004