Ontario Court of Appeal Upholds Solicitor-Client Privilege in Internal Accident Investigation Reports
The recent decision of the Ontario Court of Appeal in R. v. Bruce Power Inc. ("Bruce Power") affirms that where an employer has taken the important step of protecting an internal accident investigation report with solicitor-client privilege, that report is not subject to seizure by the Ontario Ministry of Labour (MOL). In Bruce Power, the Court held that the Crown's seizure of a solicitor-client privileged accident investigation report was prejudicial to Bruce Power's right to a fair trial and all charges against Bruce Power and two of its supervisors under the Ontario Occupational Health and Safety Act ("OHSA") were stayed.
Bruce Power and two of its supervisors had been charged with offences under the OHSA after a serious workplace accident. Bruce Power's in-house legal counsel retained a lawyer specializing in OHSA matters ("OHSA counsel") who requested that Bruce Power provide an investigation report to be used to provide legal advice. A report was prepared and shared with members of Bruce Power along with written instructions to keep the information confidential. During the investigation, the MOL officer sought production of the report. Bruce Power's in-house counsel claimed privilege and refused to produce the report; however, a copy of the report was provided to the MOL officer during an interview with a Bruce Power employee. When OHSA counsel learned of the disclosure of the report, he brought a motion for a stay of proceedings, arguing that the report was subject to solicitor-client and litigation privilege and that the Crown's seizure of the report violated Bruce Power and its supervisors' rights to fair trial under the Charter of Rights and Freedoms. A stay of proceedings was granted at trial but was overturned at the first level of appeal.The Ontario Court of Appeal restored the stay of proceedings. The Court held that solicitor-client privilege is fundamental to the administration of justice in Canada and closely linked to the right to a fair trial. The Court concluded that the breach of solicitor-client privilege was such that information contained in the report could be used to the detriment of the defendants, that a witness would not be able to erase the contents of the report from his or her consciousness, and that it would be nearly impossible for the trial court to determine if a witness' testimony or the prosecution's strategy had been influenced by the report. Ultimately, the Court of Appeal held that where the Crown comes into possession of privileged information, prejudice to the defendant will be presumed. This presumption can be rebutted by the Crown explaining what information has been learned and the steps taken to avoid the resulting prejudice. In Bruce Power, the Crown was unable to lead evidence to rebut the presumption of prejudice. Indeed, the Court of Appeal inferred that the MOL officer's failure to testify on the stay application before the trial court was because there was no credible explanation for the conduct of the prosecution. The Court of Appeal held that allowing the trial to proceed would provide the Crown with a second opportunity to rebut the presumption of prejudice where the evidence suggested the Crown would be incapable of doing so. When coupled with the trial court's finding that the information in the report could be used to the disadvantage or prejudice of the defendants the Court of Appeal held that the stay of proceedings should be restored.
For more information on this decision, see OHS & Workers' Compensation Management Update: "Ontario Court of Appeal Upholds Sanctity of Solicitor Client Privileged Internal OH&S Accident Investigation Reports", online, by Cheryl A. Edwards and Jeremy Warning.
Trackbacks (0)
Links to blogs that reference this article
Trackback URL
http://www.globalemploymentlaw.com/mtc/mt-tb.cgi/260
http://www.globalemploymentlaw.com/mtc/mt-tb.cgi/260
Comments (0)
Read through and enter the discussion with the form at the end