ACC submitted a letter of support in the case Alberta v. Suncor Energy Inc., urging the Supreme Court of Canada to resolve issues related to the litigation privilege for internal investigations.
WASHINGTON (October 11, 2017) —The Association of Corporate Counsel (ACC), a global legal association representing more than 43,000 in-house lawyers in 85 countries, including 1,490 in-house lawyers in Canada, recently submitted a letter of support in the case Alberta v. Suncor Energy Inc. ACC urged the Supreme Court of Canada to hear the case and to resolve issues and inconsistencies related to the litigation privilege for internal investigations.
With ACC Alberta, ACC British Columbia, ACC Ontario, and ACC Quebec, the letter supports Suncor's request and position in order to clarify the extent to which the litigation privilege applies in internal investigations in Canada. "Left unresolved, the legal questions presented in this case create a climate of uncertainty that is detrimental to businesses and the legal departments that support them," the ACC letter states.
ACC goes on to state that the lower court decision "threatens the very purpose of the litigation privilege" by questioning whether it "can cover 'the entirety' of an internal investigation file." The decision also adds confusion for in-house legal departments in instances where materials are created for an internal investigation in a situation where the investigation "is also mandated by a regulatory obligation."
In its examination of which materials prepared for internal investigations fall within the litigation privilege, the Court of Appeal also introduces "a burdensome framework," ACC argues. Taking a document-by-document approach is impractical when the volume of thousands of documents adds administrative and cost burdens for both the courts and corporations.
The ACC letter also points out that the lower court decision is inconsistent with practices in other common law countries, namely the United States and the United Kingdom, and that businesses operating across borders rely on consistency when it comes to questions of privilege.
"ACC works to ensure that corporate clients are able to turn to their in-house lawyers for confidential legal advice, and the Canadian Court of Appeal's decision puts that ability in jeopardy for our Canadian members," said Amar Sarwal, ACC chief legal officer and senior vice president of advocacy and legal services. "We urge the Supreme Court of Canada to take up this case and clarify the inconsistencies introduced by the lower court."
To read the ACC letter of support, visit http://www.acc.com/advocacy/upload/ACC-letter-Suncor-v-Alberta.pdf.
About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other organizations through information, education, networking, and advocacy. With more than 43,000 members in 85 countries employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.
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