Investigating safety incidents is a key part of a safety coordinator’s job. Once your investigation ends, you must report your findings to management and others within the company so they can take appropriate steps to ensure that a similar incident doesn’t happen in the future. However, your internal incident report may reveal things that your company did wrong, such as breakdowns in the OHS program or deficiencies in worker training, which could be safety violations. The last thing you want is for government investigators and prosecutors to get their hands on your report and use it as evidence in a prosecution against the company. By using a legal doctrine known as “privilege,” you may be able to shield internal incident investigation reports from investigators and prosecutors. A recent Ontario case not only confirms that incident investigation reports can be protected by privilege but also notes that if the prosecution should happen to get a hold of a privileged report, it won’t be able to use the report.
What Happened: A worker was seriously injured in a fall. The company consulted attorneys, who advised the company to form a team to investigate the incident and produce a report on it to be used by the attorneys to give the company legal advice. The company formed a team consisting of members of management and union workers. The team investigated the incident, interviewed witnesses and drafted a report of its findings marked “confidential.” All team members reviewed the draft and then returned it, except for one worker. A government inspector asked for a copy of the report but was told it was privileged. The MOL charged the company with several safety violations. The inspector met with the worker member of the investigation team, who gave him the draft investigation report he still had. The company learned that the prosecution had the investigation report and asked the court to dismiss the charges against it, arguing that the prosecution’s possession and use of this privileged report had violated its right to a fair trial.
What the Court Decided: The Ontario Court of Appeal dismissed the charges.
How the Court Justified the Decision: The court found that the report was privileged and contained information that could be used to the “disadvantage and prejudice” of the company. The inspector knew that the company considered the report privileged and so he wasn’t justified in taking the report when offered it by the worker. The issue: Did the prosecution’s possession of this privileged report prejudice the company? The court concluded that when the government comes into possession of a privileged defence document, prejudice to the defence is presumed but may be rebutted.
In this case, the government’s possession of the privileged report prejudiced the company. It would be difficult, if not impossible, for a witness who read the report to erase its contents from his memory. Likewise, it would be difficult, if not impossible, for the court to determine the effect the report may have had on a witness’ testimony or the prosecution’s strategy, explained the court. The prosecution didn’t take any steps to limit access to the report and planned to use the report at trial. In fact, it didn’t provide any evidence that it hadn’t used the report in preparing the case for trial or evidence to rebut the presumption of prejudice to the company. As a result, the company’s right to a fair trial was violated. Thus, the appropriate remedy was dismissal of the charges against the company, concluded the court [R. v. Bruce Power Inc., [2009] O.J. No. 3016, July 17, 2009].
Let’s be clear about one thing: When the prosecution gets possession of a privileged document, the remedy will not always be the dismissal of charges against the company. Dismissal is an extreme remedy and only used as a last resort, noted the court in Bruce Power. But it’s equally clear that if the document is, in fact, privileged, rest assured that the court will likely—at a minimum—bar the prosecution from using that document against the company. Lesson: It’s in your company’s best interests to ensure that sensitive documents, such as those related to the investigation of a safety incident, are protected by privilege whenever possible.
Want to learn more about incident investigations and using privilege to protect related documents? Attend the OHS Compliance Summit 2009 on Oct. 14 and 15 and listen to Cheryl Edwards, Partner, Heenan & Blakie, and former Crown Prosecutor, tell you how to:
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