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Health & Safety: Applying Solicitor-Client And Litigation Privilege To Protect Internal Investigations.

Article Excerpt
The Ontario Court of Appeal has released its much-anticipated decision in R. v. Bruce Power Inc. This case demonstrates that the results of internal employer investigations into workplace injuries and fatalities can be shielded from use in subsequent prosecutions, provided that appropriate steps are taken by the employer to "cloak" the investigation documents in solicitor-client and litigation privilege.

The Court also clarified that when the Crown improperly obtains access to a privileged internal employer investigation report, the prosecution may be stayed unless a lesser remedy can cure the presumed prejudice caused by the Crown's access to the privileged information.

What is the Case About? This case arises out of charges laid under the Ontario Occupational Health and Safety Act against Bruce Power Inc. and two of its supervisors in connection with the serious injury of a worker at the Bruce "B" Power Generating Station.

Immediately following the injury, the Company sought advice from external counsel. The...