(“Suncor”) facility in Alberta. In particular, at the behest of Suncor legal counsel, Suncor’s HSE employees immediately undertook an internal investigation of the accident (the “Suncor Investigation”) in accordance with its statutory obligations under s. 18(3)(a) of the Occupational Health and Safety Act, RSA 2000, c O-2 (the “OHS Act”). Alberta’s Occupational Health and Safety (“OHS”) officers also initiated their investigation on the same day. Throughout the Suncor Investigation, documents were marked as privileged and confidential on the basis that “litigation was a real and distinct possibility” and a thorough investigation was required for the purposes of fulsome legal advice. In the course of their investigation, OHS officers requested production of certain documents, pursuant to s. 19 of the OHS Act, including notes, photos, videos and witness statements with respect to the incident. Suncor refused to produce copies of the witness statements and interviews obtained during the Suncor Investigation, claiming legal privilege (the “Refused Information”). Notwithstanding this refusal, both the Suncor Investigation and the OHS officers’ investigations continued. Several months later, OHS officers issued a demand for Suncor “to investigate the Accident and prepare a report that includes preventive measures adopted.” Suncor prepared and submitted its report to OHS.
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