The ministry imposed a $5,000 penalty on Suncor for not providing all the information and the officers continued to demand production of the other information. The ministry went to court to get orders to compel Suncor to produce the documents over which it had asserted privilege and to compel Suncor’s investigators to submit to interviews by OHS officers. The court rejected the government’s position that privilege could not be asserted over information and material collected as part of a statutorily compelled accident investigation. The court found that a single investigation can have a dual purpose — regulatory and litigation — and that this dual purpose does not cancel out the right to assert legal privilege over the documents and information collected as part of the investigation. Managing risks from coroner’s inquests, fatality inquiries In the hours and days immediately following a serious workplace accident, it is critical that any organization starting an investigation take precautionary measures to ensure, where possible, the results of the investigation are covered by “solicitor-client” and “contemplated litigation” privilege, including: • involving internal or external legal counsel in requests for the investigation (if using in-house counsel, it is very important to be able to show that the purpose of the investigation is legal, rather than business-related) • communicating the privileged nature of the investigation and the need to preserve it as confidential to all members of the investigation team • ensuring all investigation materials and reports are appropriately marked as privileged and are controlled • ensuring the dissemination of any report is limited. Employers also need to consider the following do’s and don’ts when it comes to OHS investigators carrying out their own investigation: • Don’t obstruct a regulator in the carrying out of her investigation (such as by failing to report accidents in a timely manner or by barring entry to the scene). • Don’t interfere with an accident scene (including any movement of equipment — unless it is necessary for medical aid — or conducting destructive testing or any testing, for that matter, unless it is necessary to secure the scene and ensure that it is safe for investigation). • Do preserve evidence, particularly physical evidence of conditions at the scene. • Do be respectful and professional when dealing with regulators.
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