Law Times

PAGE 10 But requests subject to privilege restrictions, appeal court rules FOCUS Regulators seeking workplace reports BY JULIUS MELNITZER For Law Times F ollowing a workplace ac- cident, employers will often conduct an internal investigation to determine what happened and what might pre- vent a recurrence. Th e fi ndings frequently make their way into a written report. Such investigations seem like a good idea but they're also a double-edged sword because the contents of the reports — admissions, pho- tographs, theories, and wit- ness statements — can be Canadian Employment Law Also available on CD-ROM or Internet! One of Canada's foremost employment authorities provides an examination of the facts you can count More than 5,500 cases cited! This one-stop reference provides a thorough survey of the law. It clearly analyzes current law and devel- oping trends, suggests potential avenues of attack as well as identifies potential weaknesses in the law. Covering the complete range of employment law in Canada, Canadian Employment Law provides the detailed examination of the facts you can count on. The subject-matter is wide-ranging and addresses issues such as: • • • • • wrongful dismissal fiduciary obligations tort law and vicarious liability issues remedies constitutional issues Easily compare lengths of notice awards and examine pertinent decisions This resource also includes a Table of Reasonable Notice—a chart, which groups together comparable types of positions so you can easily compare length of notice awards. All topics are illustrated with extensive case law and heavily footnoted. Canadian Employment Law has been cited by the Supreme Court of Canada. ORDER your copy today Looseleaf & binders (2) • $297 • Releases invoiced separately (3-4/yr) P/C 0439030000 • Vol. 1 ISBN 0-88804-218-3 • Vol. 2 ISBN 0-88804-362-7 CD-ROM or Internet version available separately • Prices start at $221 • • • occupational health and safety employment contracts duty of good faith and fidelity and human rights extremely useful to prosecutors. "Increasingly, employers fi nd that provincial and federal safe- ty offi cers request production of their internal investigation re- ports," says Jeremy Warning of Heenan Blaikie LLP. Still, employers can take steps to create solicitor-client privilege for these documents. If they do so, the Ontario Court of Appeal's recent decision in R. v. Bruce Power Inc. affi rms that the reports are not subject to seizure by regulators. "Th e court is clear, however, that employers must follow very specifi c procedures if they are to claim privilege success- fully," says Mary Beth Currie of Bennett Jones LLP. In January 2002, a worker was seriously hurt in a fall at a Bruce Power generating station. Th e Ministry of Labour began an investigation on the day of the accident, while in-house coun- sel at Bruce Power contacted an outside lawyer who specialized in occupational health and safety matters. Th e lawyer suggested the company conduct its own probe and provide a report for use in the defence of any charges. Th e next day, the company For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. BALL_Canadian Employment Law (LT 1-4x3).indd 1 LT0302 struck an accident-investiga- tion committee that included management and union rep- resentatives. Th e committee worked under terms of refer- ence that expressly stated that the investigation was in con- templation of litigation and that Bruce Power's in-house lawyer would hold in confi - dence all documents created in the course of the probe. 2/25/09 2:56:17 PM Jeremy Warning says the Bruce Power case is novel for its presumption that a breach of solicitor-client privilege creates prejudice. Interviewers told witnesses defence counsel would use the information given only if au- thorities laid charges under the Occupational Health and Safety Act. Th ey also said the company wouldn't share the interviews with the Ministry of Labour or anyone else except with counsel. Th e draft report was marked "confi dential" and distributed to the committee together with in- structions for maintaining confi - dentiality and to return or destroy all copies after reading them. In December 2002, the Ownership notwithstanding, your business is our business. The most productive relationships are born of mutual understanding. That's why we're as committed to getting to know our clients' business as we are to helping them understand the intricacies of labour and employment law. Toronto 416.408.3221 Untitled-4 1 I London 519.433.7270 I filion.on.ca www.lawtimesnews.com 7/8/08 10:44:18 AM Crown charged Bruce Power and two of its supervisors with off ences under the Occupation- al Health and Safety Act. Before trial, the Crown interviewed a committee member who had retained the report in defi ance of company instructions. Th e committee member also turned over the report, a fact the Crown disclosed to Bruce Power. Th e company moved for a stay of proceedings. A justice of the peace origi- nally ruled that a Charter viola- tion had occurred and that a trial would be an abuse of process. As a result, she stayed the charges. But an Ontario Court judge set aside the stay, instead order- ing that the Crown couldn't use the report at trial. Bruce Power then took the case to the Court of Appeal, which restored the order. Th e court ruled that so- licitor-client privilege was fun- damental to the administration of justice and that prejudice to the defendants could be presumed. While the Crown could rebut the presumption by explaining what it had done to avoid prejudice through its possession of the privileged re- port, prosecutors were unable to do so in this case. Th erefore, while not ev- ery breach of solicitor-client privilege would merit a stay of proceedings because that's a remedy of last resort, this was, according to the court, an ap- propriate case to impose one. "Th e novel aspect of this case is in the Court of Appeal's rul- ing that prejudice is presumed when solicitor-client privilege is breached," Warning says. LT November 16, 2009 • Law Times Stacey Reginald Ball

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