Alberta's Highest Court Clarifies OHS Law: Privilege Must Be Proven

With its decision this week in Alberta v. Suncor Energy Inc, 2017 ABCA 221, the Alberta Court of Appeal has considered and clarified the application of solicitor-client privilege and litigation privilege to incidents under Alberta's Occupational Health and Safety Act (OHSA). 

This case involved a fatal workplace incident at a Suncor location near Fort McMurray in 2014. Hours after the incident occurred, the employer initiated an internal investigation and, upon instructions of in-house counsel, labelled all information pertaining to the internal investigation as privileged and confidential. Of course, under OHSA, employers are required to conduct post-incident investigations, prepare reports and provide OHS officers with access to the workplace and employees so that they may conduct their own investigation. Here, the employer refused to provide materials that were collected or created after their internal investigation began, claiming solicitor-client and