When a company has a safety or environmental incident, prosecution for OHS or environmental violations and even criminal charges may be the least of its problems. If the incident impacts neighbouring companies or residents, say, because it involves a fire or explosion, the neighbours may sue the company for the damage done to their property either individually or collectively in a lawsuit called a “class action.” In either case, before the case gets to trial, the parties suing the company are entitled to engage in a process known as “discovery” in which they seek to gather information and documents from the company that they can use as evidence in the lawsuit. But what if the parties want information such as photographs, reports and witness statements not from the company but the regulatory agencies that investigated the incident and who aren’t parties in the lawsuit? Is the information such agencies gather in investigating the incident subject to discovery in a lawsuit arising from the incident? An Ontario court recently confronted with this important issue. Although the case comes from Ontario, the principles it addresses also apply in other parts of Canada.
THE CASE
What Happened: On Aug. 10, 2008, there was an explosion and fire at a propane facility that resulted in the evacuation of the surrounding area and damage to nearby properties. The property owners sued the propane company in a class action for the physical damage to and contamination of their property, reduction in the property’s value and emotional distress. One of the key issues in the lawsuit was the cause of the explosion. To that end, the property owners asked the court to order the regulatory agencies involved in the incident’s investigation, including the Ministries of Labour and Environment, to produce the “fruits of their investigations” so that their expert could prepare a report on the explosion’s cause. The agencies refused to turn over some of the records.
What the Court Decided: The Ontario Superior Court of Justice ordered the agencies to produce some but not all of the requested information.
How the Court Justified the Decision: The court explained that because the agencies weren’t parties to the lawsuit, the property owners had to meet a two-part test to be entitled to discovery from the agencies. First, they had to show that the documents requested were relevant to a “material”—that is, significant—issue in the lawsuit. The court concluded that the property owners easily satisfied this requirement. The requested documents, including photographs, videotapes, drawings, maps and witness statements, were all relevant as to the condition of the site before the explosion and after the explosion but prior to its disturbance by the investigation and clean-up. The expert clearly needed this information to form an opinion on what had caused the explosion, said the court.
Second, the property owners had to show that it would be unfair to require them to go to trial without the requested documents. In conducting the fairness analysis, the court considered a number of factors, most of which strongly favoured disclosure. For example, the Fire Marshall closed the site immediately after the incident and only the agencies had access to it. Thus, much of the necessary information was only available through the agencies, noted the court. In addition, the property owners needed the materials at this stage of the lawsuit because they risked the dismissal of the lawsuit if they didn’t have an expert opinion on the explosion’s cause. So the court concluded that it would be unfair to force the property owners to go to trial without the requested documents.
However, the court was sensitive to the agencies’ argument that disclosure of many of the requested documents, particularly at this early stage in the lawsuit, wasn’t in the public interest. For example, disclosure of witness statements to the property owners might lead them to interview the witnesses and thus possibly “taint” their testimony in a regulatory or criminal prosecution. In addition, investigators’ reports that contained theories on the cause of the explosion or that revealed the investigative process are protected by “investigative privilege” and so shouldn’t have to be disclosed at this time. So for each category of requested document, the court balanced the public interest against the interests of the property owners and ruled that the agencies must provide the property owners with:
However, the court allowed the agencies to redact the witnesses’ names and contact information from the documents. It also barred the property owners from contacting the witnesses whose identities were already known until those witness testified in a proceeding related to the incident, the government decided not to lay charges or 18 months had passed from the issuance of this order. In addition, the court prohibited the property owners from making additional copies of the documents provided by the agencies without consent or showing the documents to anyone except for their lawyers and experts [Durling v. Sunrise Propane Energy Group Inc., [2008] CanLII 65591 (ON S.C.), Dec. 11, 2008].
ANALYSIS
The issues of the Durling case might seem to involve arcane questions of legal procedure of interest only to trial lawyers. But the case has important practical implications for companies and their safety coordinators. Why? Because it illustrates the far-ranging consequences that a safety incident can have. The Durling case serves as a reminder that incidents can result not only in prosecution but also civil lawsuits for damages. Discovery is often a long and difficult process, especially when the company refuses to disclose the documents its opponents request. But parties suing the company may be able to get information the government gathered in an investigation of a safety incident and use it in their civil lawsuit. And, as the propane company in Durling learned, there’s not much the company can do to prevent such discovery.
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