Last week marked the one year anniversary of one of the most
important non-decisions that the Supreme Court of Canada
(SCC) has ever made with respect to the conduct of
internal accident investigations at workplaces. Its impact will
likely be felt for years to come.
The case was Suncor Energy Inc. v. Her Majesty the Queen in
the Right of Alberta, and it was a non-decision
because the SCC declined to grant the company leave to appeal the
lower court's decision. In doing that, the SCC definitively
instructed lower courts that the content of employers'
investigations into workplace accidents, even if undertaken in
contemplation of litigation (i.e. a prosecution), will not
automatically be protected by privilege. Rather, production of the
content of employers' internal investigations, depending on the
documents in which they are found, could be compelled by
investigators and used to convict the employers that create
them.
