Case Report – OCA grants leave in case about whistle-blower who leaked privileged report to Crown

On July 7th, the Ontario Court of Appeal granted leave to appeal in noteworthy case about breach of privilege by the Crown.

The case involves an investigation report prepared at the request of external legal counsel after a critical injury for which Occupational Health and Safety Act charges were ultimately laid. An employee who was given a draft of the report on the undertaking he destroy it gave a copy to the Crown. This was after the company had asserted privilege to the Ministry inspector, who had agreed not to order the report’s production.

When the Crown disclosed the report to the company it immediately objected, and at trial moved for a declaration (that the report was privileged) and a stay. It succeeded in obtaining a declaration, a stay and an order for $38,000 in legal costs. On appeal, the stay and the costs order were overturned. In its judgement on leave, the Ontario Court of Appeal explained the difference between the J.P. and the appeal judge’s views as follows:

Essentially and in a nutshell, the justice of the peace and the appeal judge approached the issue of prejudice differently. The justice of the peace assumed prejudice when the Crown gained access to the accused’s privleged document and held that in the circumstances no remedy short of a stay would ovecome that prejudice. The appeal judge, on the other hand, was of the view that the stay should be set aside. In her view, the trial should proceed but without prejudce to the applicant’s right to move for a stay during or at the conclusion of that trial if predjduce is demonstrated.

In granting leave, the Court of Appeal commented that the civil law cases on inadvertent disclosure of privileged records are not “particularly on point” and that this was likely an issue that would arise in the context of corporate accused who face “disgruntled” employees.

Thanks to my colleague Meghan Ferguson for the hat tip on this case.

The Queen (Ontario Ministry of Labour) v. Bruce Power Inc. (7 July 2008, Ontario Court of Appeal).