Tag: litigation privilege

Alberta Court of Appeal Addresses Privilege in Post-Incident Reports

On April 26th, the Court of Appeal of Alberta affirmed a lower court decision that privilege in two post-incident investigation reports had been waived, also opining on the law governing whether the reports were subject to litigation privilege.

The case arises out of 2015 pipeline failure. The operator initiated an investigation for multiple purposes, ultimately leading to the creation of several reports, including the two expert reports at issue. The operator relied on an affidavit sworn by its assistant general counsel in which she stated that she contemplated litigation soon after the incident and directed all investigations to be conducted on a privileged and confidential basis under the supervision of legal counsel.

The two reports were later produced by experts. The lower court judge did not review the reports, but held they were used to decide whether to repair or replace the pipeline and encompassed “too many other concerns” to have been prepared for the dominant purpose of litigation. The lower court judge also held the operator waived privilege in the reports by sharing them with the Alberta Energy Regulator and the Association of Professional Engineers and Geoscientists of Alberta and by mentioning the conclusion of the reports at a press conference.

The press conference statement is worth quoting:

Nexen has conducted comprehensive investigations into the pipeline failure in July 2015 and the January 2016 explosion at its Long Lake Oil Sands facility to determine the root cause for each incident. . . .

•         Following the Long Lake pipeline rupture discovered on July 15, 2015, Nexen conducted a comprehensive, independent investigation using Nexen’s Event Recording and Analysis (ERA) Procedure to determine the root cause.

•         Based on our investigation, the root cause of the rupture was a thermally-driven upheaval buckling of the pipeline and the subsequent cooldown during the turnaround. This was the result of using an incompatible pipeline design for the muskeg ground conditions. Steps that could have been taken to mitigate the potential for upheaval buckling were not addressed.

The Court of Appeal held that this revelation did not waive privilege as found by the lower court judge. The core of its reasoning is that the statement did not clearly reveal the content of the privileged reports: “It is difficult to see how privilege could be lost over a document that is no even mentioned.”

Privilege was nonetheless waived, the Court said, by the voluntary disclosure of the reports to the Regulator and the APEGA. Although the operator disclosed the reports to the Regulator with various stipulations, none precluded the Regulator from using the reports in a prosecution or from disclosing the reports to others as required by law. Likewise, disclosure to the APEGA for its use was incompatible with maintaining a privilege claim.

On the privilege claim itself, the Court applied its decision in Suncorp, which dictates that litigation privilege must be assessed on a document-by-document basis. It then stressed that the dominant purpose test applies to the creation of a document, not the investigation that preceeded the document’s creation or the use of the document after it was created. It questioned the lower court judge’s finding because the judge made it without reviewing the reports and because the judge placed too much emphasis on the reports’ use use rather than the purpose for their creation.

The creation and maintenance of a litigation privilege claim is very technical, and this decision is illustrative in many ways. The finding that the above-quoted press conference statement did not waive privilege is most notable. The statement does have a degree of vagueness about it, but also hints at the content of privileged documents in a way that begs a question about what they say. Ultimately, the Court’s finding suggests that drafters of such statements have some latitude to garner trust from expert investigations so long as they don’t refer to the content of privilege reports. This is helpful, though to be relied upon with caution.

CNOOC Petroleum North America ULC v ITP SA, 2024 ABCA 139 (CanLII).

Federal Court of Appeal – litigation database privileged, no production based on balancing

On October 20th, the Federal Court of Appeal set aside an order that required the federal Crown to disclose the field names it had used in its litigation database along with the rules used to populate the fields. It held the order infringed the Crown’s litigation privilege.

The case management judge made the order in a residential schools abuse class action. The Crown had produced approximately 50,000 documents, with many more to come. The plaintiffs sought the fields and rules (and not the data in the fields) to facilitate their review. The case management judge, though acknowledging litigation privilege, judged the fields and rules as less revealing than the data in the fields and ordered production in the name of efficient procedure.

The Court of Appeal held that the case management judge erred because they “subordinated the Crown’s substantive right to litigation privilege to procedural rules and practice principles.” It also held, “a party attempting to defeat litigation privilege must identify an exception to litigation privilege and not simply urge the Court to engage in a balancing exercise on a case-by-case basis.”

Canada v. Tk’emlúps te Secwépemc First Nation, 2020 FCA 179 (CanLII).

Legal Privilege and Data Security Incident Response – Law and Practice

I’m off to a cyber conference in Montreal this week to sit on a panel about threat exchanges. My role will be to address the legal risks associated with sharing threat information and a university’s ability to effectively assert a confidentiality interest in the same information. I’m genuinely interested in the topic and have prepared not just one, but two papers!

Here is the first one – a nuts and bots presentation on privilege and data security incident response. I hope it is useful to you. Feedback welcome through PMs.

SCC issues decision lending weight to litigation privilege

On Friday, the Supreme Court of Canada held that a legislative provision cannot abrogate litigation privilege unless it does so with clear, explicit and unequivocal language. 

This principle was established for solicitor-client privilege by the Court in its Blood Tribe decision of 2008. It now extends to litigation privilege.

The Court also used Friday’s decision to establish litigation privilege as a “fundamental principle of the administration of justice.” It affirmed:

  • litigation privilege is a class privilege, entailing a presumption of immunity from disclosure once the conditions for its application have been met;
  • litigation privilege is only subject to clearly defined exceptions and not to a case-by-case balancing exercise; and
  • litigation privilege can be asserted against third parties, including third parties who have a duty of confidentiality.

Litigation privilege retains its status as a kind of junior privilege to the almighty solicitor-client privilege. According to the Court, however, litigation privilege is an important, class privilege that behaves like a class privilege. Arguments that litigation privilege must give way to the truth seeking function because of the circumstances will now ordinarily fail. 

Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (CanLII).

Non-party witness can receive document subject to litigation privilege

On August 23rd, the Supreme Court of British Columbia held that a non-party witness should have access to a statement she gave to an insurance adjuster even though it was subject to the adjuster’s litigation privilege. It said:

Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement. The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it. I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below. I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties. The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake. The mistake can be only embarrassing to the non-litigant and/or it can distort the evidence before the court. Neither is desirable.

Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective. The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it. She did not do that. In my view, she did not have to do it and nor should she now be at a disadvantage greater than a party for failing to do it.

It ordered the statement to be produced to the witness with the proviso that it the witness keep the statement confidential.

Minnie v ICBC, 2013 BCSC 1528 (CanLII).

Lawyer’s notes of opposing party’s statements to be produced

On October 30th the Ontario Superior Court of Justice issued a decision that illustrates the burden on a party who claims that notes taken of an opposing party’s statements are subject to litigation privilege.

The Court rejected a litigation privilege claim because it was impossible to discern from a review of the notes alone that they contained solicitor’s work product – i.e., confidential comments, remarks and notes personal to the transcriber and made for the dominant purpose of preparing for litigation. Although the notes contained some annotations and underlining, the Court held that it was not self evident these markings were work product. It also held that counsel’s submission that certain text in the notes represented an evaluation of the opposing party’s value as a witness was not sufficiently persuasive to justify a withholding of otherwise producible information.

Hart v (Canada) Attorney General, 2012 ONSC 6067 (CanLII).