SCC Dismisses Leave To Appeal The ABCA's Decision That Litigation Privilege Cannot Cloak An Employer's Internal Investigation Process

The Supreme Court of Canada has dismissed leave to appeal in Suncor Energy Inc. v. Her Majesty the Queen in the Right of Alberta. The case involved the application of litigation privilege to an internal incident investigation conducted following a workplace fatality.

In April 2014, Suncor Energy Inc. (Suncor) experienced a worker fatality at one of its worksites near Fort McMurray. Suncor immediately commenced an employer's incident investigation as required under section 18(3)(a) of the OHS Act. Based on initial information received as part of the employer's investigation, Suncor determined that litigation was a real and distinct possibility and as such, it commenced an internal investigation into the incident with direction to endorse all documents within this internal investigation as privileged.