This Year in Review highlights and provides context for several significant developments including:
1. Protecting OHS investigations with privilege: do new developments mean new strategies?
Employers, prime contractors, and constructors often carry out their own investigations after a serious workplace accident. Investigations may be conducted for different reasons and are often required by law. Regardless of why investigations are carried out, they can produce a significant amount of information, including detailed reports, witness statements, photographs, measurements and even expert reports and opinions. These materials can include information that could be harmful to the interests of the organisation and its management. They can also include information that was not gathered by government investigators. It is, therefore, good practice to remain in control of this information and keep it out of the hands of government investigators to the extent that this is possible. The principal tool for doing so is to protect the material with legal privilege.
Relatively few cases in the occupational health and safety area address the steps necessary to establish either solicitor-client or contemplated litigation privilege over information, particularly in light of statutory requirements to conduct investigations and prepare reports. However, the Alberta Court of Appeal recently provided some clarification in Alberta v Suncor Energy Inc. (2017 ABCA 221).
The case arose from a fatal incident at a Suncor worksite. Suncor began an internal investigation and asserted ‘litigation privilege’ over the materials created and collected in the course of its investigation. Litigation privilege is a form of legal privilege that can be claimed over documents and information created for the dominant purpose of preparing for reasonably anticipated litigation, such as a prosecution under health and safety legislation.
In response to Suncor’s claim of litigation privilege, the Ministry of Labour and the Government of Alberta asked the Alberta Court of Queen’s Bench to order Suncor to provide information and records related to the workplace fatality.
At the Alberta Court of Queen’s Bench, Suncor was successful in arguing that litigation privilege applied in respect of regulatory proceedings, including when a regulatory agency carries out an investigation that ‘could result in the prosecution of offences with [potential] consequences’ (Alberta v Suncor Energy (2016 ABQB 264) at paragraph 28). The Alberta government appealed.
The Alberta Court of Appeal determined that, even if the internal investigation as a whole was undertaken in contemplation of litigation, it did not necessarily follow that every document created or collected during the investigation was privileged.
Effect of the ruling
The effect of the Court of Appeal decision is that, where a claim of privilege is challenged, a party seeking to rely on privilege must clearly state and prove the kind of privilege, for example, litigation privilege or solicitor-client privilege, for each individual document or bundle of like documents. A sufficient description of the document(s) must also be produced in order to establish the evidentiary basis for the privilege claimed (e.g. to establish that the document was created to prepare for reasonably apprehended litigation). Making broad and general claims to all forms of privilege, or as the court put it, attempting to ‘throw a privilege blanket’ over the materials gathered without any particulars will not be enough.
For employers, the decision in Suncor is helpful because it confirms that privilege can be claimed over internal investigation materials. However, the decision is also a reminder that the onus of proving material is privileged will rest on the employer or party claiming the privilege. It adds nuance to the steps necessary to establish claims of privilege if they are contested.
In light of this decision, Canadian employers who are carrying out workplace investigations should turn their minds to the possibility of future document production obligations during the investigation process. It would therefore be prudent for employers and their counsel to take careful steps to establish solicitor–client privilege by contacting external specialised OHS counsel, and to take steps to establish contemplated litigation privilege by ensuring that investigation materials are kept confidential, access is controlled and that they are segregated. In light of the Court of Appeal decision, additional steps could involve more specifically identifying documents and information over which privilege could reasonably be asserted and materials that are unlikely to be considered privileged (because they were not created or prepared for the dominant purpose of preparing for litigation or receiving legal advice). For materials over which privilege will be asserted, it would be prudent to be scrupulous in ensuring that the material is handled and used in a manner that is consistent with its privileged nature so as to distinguish it from information prepared for use in day-to-day operations or to comply with statutory obligations. Employers may consider conducting parallel investigations: one that is conducted with the predominant purpose of preparing for litigation and/or obtaining legal advice and the other for complying with statutory obligations. Further, if solicitor‑client privilege will be asserted, the employer should ensure that the information and materials are provided to counsel in order to obtain legal advice.
2. Managing OHS prosecutions during on-going criminal investigations
Following amendments to the Canadian Criminal Code in 2004, serious workplace accidents have attracted the risk of both criminal and OHS investigations and prosecutions. Increasingly, such events are resulting in charges being laid under both the Criminal Code and applicable OHS legislation. However, there is a key distinction between OHS and criminal charges: the limitation period (the time by which a charge must be laid). OHS legislation across Canada has varying limitation periods but, at most, they are two years in length. Conversely, there is no limitation period for a criminal negligence charge under the Criminal Code.
The absence of a limitation period for criminal charges had a unique impact on an Ontario case earlier this year. In R v Campbell (2017 ONSC 3442), Mr Campbell was charged with criminal negligence after pleading guilty to an offence under the Ontario Occupational Health and Safety Act (‘OHSA’). The details are set out below and provide a reminder that criminal investigations and charges may proceed and arise at dramatically different points from OHS charges.
On 17 April 2014, Mr Campbell pleaded guilty (as a supervisor) to a charge under the OHSA after a boom truck he was operating toppled over and killed a worker. He was fined CAD 3,500. The accident happened on 21 June 2012, and, in September 2014 – approximately five months after Mr Campbell entered his guilty plea in the OHS proceedings and more than two years after the accident – he was charged with criminal negligence causing death under the Criminal Code. The facts set out in this decision suggest that the criminal negligence charge may have been motivated by dissatisfaction with the penalty imposed on Mr Campbell.
Mr Campbell brought an application to stay the criminal charge because of the delay in laying it. He argued that the delay was highly prejudicial to him. The court agreed and concluded that it was not reasonable for the Crown to have waited to file criminal charges until the OHSA proceedings were completed. The two charges could have proceeded at the same time. Further, the Court determined that the guilty plea under the OHSA could prejudice Mr Campbell in the pending criminal proceedings, which would be dealt with by a jury trial.
Citing the accused’s right to life, liberty and security of the person and his right to a fair trial (under Sections 7 and 11 of the Canadian Charter of Rights and Freedoms, the ‘Charter’ respectively), the Court stayed the criminal negligence charges.
Effect of the ruling
This decision should not be taken to mean that criminal charges could never be laid following the completion of an OHSA prosecution. Faced with a more complex set of facts or an incident requiring more sophisticated investigation, a court may find a delay in laying charges to be reasonable and justified. In this case the Court found that the Ministry of Labour and the Ontario Provincial Police had concluded within three days of the incident that they had reasonable and probable grounds to lay charges. On that basis, the wait-and-see approach taken by the Crown was unreasonable and a violation of the accused’s Charter rights.
As we are seeing criminal investigations conducted with greater frequency after serious workplace accidents, this case provides a reminder that it would be prudent, in cases in which the police have been involved, to determine the status of any criminal investigation before finalising OHS charges. This is especially true for guilty pleas and can be done by liaising with the OHS Crown, criminal Crown, and the police. If a criminal investigation remains open at the time of making a decision on how to handle OHS charges, then a decision should not be made without close and careful consultation with experienced counsel.
3. Criminal Negligence Update
We continue to see increasing use of criminal law powers to address serious workplace incidents. 2017 saw the imposition of record-breaking penalties and decisions that will help shape the law in this area.
In August, the highest penalty ever imposed against a corporation convicted of criminal negligence was imposed on Detour Gold Corporation following its guilty plea to one charge of criminal negligence causing death. The charge arose after a June 2015 incident in which a worker died as a result of acute cyanide intoxication through skin absorption. The company was ordered to pay a fine of CAD 1.4 million (plus a 30% surcharge) and a restitution payment to the deceased’s family of approximately CAD 800,000 representing lost income through retirement.
The penalty imposed in the case is a meaningful addition to the relatively few sentencing decisions that currently exist. It can be contrasted with the CAD 750,000 penalty that was imposed on Metron Construction after it pled guilty to four charges of criminal negligence causing death after four workers were killed on Christmas Eve 2009 when the swing stage they were on collapsed. Metron was a much smaller company and the incident involved greater loss of life. Detour is a successful and much larger corporation.
The penalty imposed for criminal negligence can also be heavily influenced by the particular circumstances of the case. In R. v. Stave Lake Quarries Inc. (2016 BCPC 377), a CAD 100,000 fine was imposed on a British Columbia company after a guilty plea to a charge of criminal negligence causing death. The charge arose after a 22-year-old worker was killed when the dump truck she was operating toppled over on her while she was trying to stop its uncontrolled descent down a hill.
The accident happened in 2007 but charges were not laid until 2015. The fine imposed was a joint recommendation of the Crown and defence. It was accepted by the court and appears to have been heavily influenced by the potential remedy, a stay of proceedings, which Stave Lake Quarries could have sought because of the lengthy delay in laying the charges. Indeed, in accepting the joint submission, the court noted that there were Charter issues and that Stave Lake Quarries’ guilt was not a certainty. A joint submission is inherently the product of negotiation between the Crown and defence. That said, it is reasonable to speculate that the penalty that may have been sought or imposed if the delay in bringing the charges had not occurred would have been higher if there were no risk of the charges being stayed altogether.
In addition to sentencing developments, we also saw advances in the jurisprudence about how criminal negligence is evaluated or determined. In R. v. Wood, the Ontario Superior Court of Justice determined that Mr Wood, who was a professional engineer, was not guilty of criminal negligence relating to the June 2012 collapse of part of the Algo Centre Mall in Elliott Lake, Ontario. That collapse resulted in the death of two people and injuries to a number of others. The collapse occurred because structural beams were compromised due to water infiltration.
In finding that Mr Wood was not guilty of criminal negligence, the court noted that, although Mr Wood’s inspections of the mall may not have been as robust as they could have been, numerous other professionals also missed or underestimated the extent of water infiltration into the mall. It also noted that, at the time of Mr Wood’s inspections (in 2009 and 2012), there was no standard mandating how an engineer was to perform such an inspection. Finally, the court accepted evidence that, though an engineer ought to have been aware of the extent of the water infiltration, it was conceivable that, in exercising his or her own judgment (described as poor judgment), an engineer could still determine that the infiltration was not a safety hazard.
The court confirmed that proof of mere negligence or the departure from an expected standard of conduct is insufficient to establish criminal negligence. The Crown must also prove that there was wanton and reckless disregard for the lives or safety of others. The court concluded that the Crown had failed to prove beyond reasonable doubt that Mr Wood had acted in a way that showed ’unrestrained disregard for the consequences’ of his behaviour.
Effect of the ruling
The decision confirms that an error in judgment and departures from expected standards do not constitute criminal negligence unless the Crown establishes wanton and reckless disregard for life or safety. It follows that the failure to meet the requirements of OHS legislation, which can represent reasonable steps to be taken to prevent bodily harm, is unlikely to amount to criminal negligence unless there is proof of a marked departure from those requirements, establishing disregard for the consequences that could follow.
