berger, watson and greckol Jja

6.45: References to referee

Case Summary

An employee of the Respondent, Suncor, was fatally injured at a work site. Immediately after the accident, the Respondent began an internal investigation, and “threw a privilege blanket” over all information relating to its investigation. The Appellant, the Crown, filed an Originating Application in response to the Respondent’s claims of privilege, and sought an Order for the Respondent to provide the purportedly privileged materials, or at least provide further particulars about the claims of privilege.

In assessing whether the Respondent had sufficiently justified its claims of privilege, the Chambers Judge found that the dominant purpose of the investigation was in contemplation of litigation. The Chambers Judge directed the Respondent to meet with Case Management Counsel, who would assess whether the claims of privilege were justified. Case Management Counsel would act as a referee under Rule 6.45, and provide recommendations to the Court, because the Chambers Judge could not make a determination about the privilege of each particular document due to the large volume of documents. The Appellant appealed.

As a preliminary issue, the Court of Appeal noted that, absent material error of law or principle, the Chamber Judge’s exercise of procedural discretion to invoke Rule 6.45 is entitled to deference. However, in this case, the Chambers Judge erred in finding that the dominant purpose of the investigation was in contemplation of litigation, and that materials relating to the investigation would be generally covered by litigation privilege. The Court held that the Chambers Judge further erred in finding that the documents were described with sufficient particularity for an assessment of the privilege claims. The Court of Appeal agreed with the Appellant that, as a result of these erroneous findings, an assessment by the referee under Rule 6.45 was “illusory” because the finding that the investigation was generally in contemplation of litigation was binding on the Referee, or was prejudicial to the assessment. The Court of Appeal allowed the Appeal in part, and varied the Formal Order under Rule 6.45.

View CanLII Details