ALBERTA  
OFFICE OF THE INFORMATION AND PRIVACY  
COMMISSIONER  
ORDER P2022-06  
June 13, 2022  
SHELL CANADA LTD.  
Case File Number 010064  
Office URL: www.oipc.ab.ca  
Summary: The Applicant made an access request under the Personal Information Protection  
Act (PIPA) to Shell Canada Ltd. (the Organization) requesting all of his personal information  
held by the Organization, including his personnel file, investigation file relating to his  
employment and dismissal, and correspondence between employees relating to his employment  
and dismissal.  
The Organization located forty-two responsive records. Some information was provided to the  
Applicant while some information was withheld under sections 24(2)(a), (b) and (c), and section  
24(3)(b).  
The Applicant requested a review into the Organization’s search for records, as well as its  
application of exceptions to access.  
The Adjudicator found that the Organization conducted an adequate search for responsive  
records.  
The Adjudicator found that the Organization properly claimed solicitor-client privilege under  
section 24(2)(a) over one record, and litigation privilege under section 24(2)(a) over one record.  
The Adjudicator did not accept the Organization’s claim of litigation privilege over two records.  
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However, the Adjudicator found that the remaining records, including the two records for which  
the claim of litigation privilege was not accepted, were collected for an investigation and  
therefore properly withheld under section 24(2)(c).  
Statutes Cited: AB: Personal Information Protection Act, S.A. 2003, c. P-6.5, ss. 1, 24, 52,  
Rules of Court (Alta Reg 124/2010, ss. 5.6-5.8)  
Authorities Cited: AB: Decision P2011-D-003, Orders F2004-003, F2007-008, F2010-007,  
F2010-036, F2007-014, F2012-08, F2020-16, P2006-004, P2006-005, P2006-012, P2007-002,  
P2008-007, P2009-005, P2012-09, P2013-13, P2015-05  
Cases Cited: Canada v. Solosky, [1980] 1 S.C.R. 821, Canadian Natural Resources Limited v.  
ShawCor Ltd., 2014 ABCA 289 (), Edmonton Police Service v. Alberta (Information and  
Privacy Commissioner), 2020 ABQB 10, Lizotte v. Aviva Insurance Company of Canada, 2016  
SCC 52, Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23  
().  
I.  
BACKGROUND  
[para 1] The Applicant made an access request under the Personal Information Protection Act  
(PIPA) to Shell Canada Ltd (the Organization), which it received on February 5, 2018. The  
Applicant requested all of his personal information in the Organization’s custody and control, in  
any format and location that included but was not limited to his personnel file, investigation file  
pertaining to his employment and dismissal, correspondence among other employees pertaining  
to his employment and dismissal.  
[para 2] After receiving the request, the Organization asked for additional information that  
may assist with the search for records. The Applicant submitted a list of 21 names of people he  
thought might have responsive records.  
[para 3] The Organization replied to the access request on July 24, 2018. Forty-two records  
were identified as responsive. Four pages were withheld under s. 24(2)(a) and (b) and the  
balance of the records disclosed.  
[para 4] The Applicant requested a review of the search done for responsive records, and the  
Organization’s decision to withhold information.  
[para 5] In the course of the investigation conducted by this Office, the Organization  
conducted an additional search for attachments to the withheld records. The Organization located  
the attachments and provided them to the Applicant with information withheld under sections  
24(2)(a) and (c), and section 24(3)(b).  
[para 6] The Applicant subsequently requested an inquiry.  
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II.  
INFORMATION AT ISSUE  
[para 7] The information at issue consists of the information withheld in the records at issue,  
comprised of records B-1 to B-5. The Organization did not provide records B-1, B-2, B-4 or B-5  
for my review, citing solicitor-client and litigation privilege.  
[para 8] Record B-3 was provided to the Applicant with some information severed. An  
unredacted copy of this record was provided for the inquiry.  
III.  
ISSUES  
[para 9] The Notice of Inquiry, dated January 14, 2022, states the issues for inquiry as the  
following:  
1. Did the Organization comply with section 27(1)(a) of the Act (duty to assist, including  
duty to conduct an adequate search for responsive records)?  
2. Is the access request for the Applicant’s personal information? / Was the information the  
Organization withheld, or any of it, the Applicant’s personal information?  
3. If the Organization refused to provide access to the Applicant’s personal information in  
its custody or control, did it do so in accordance with section 24(2) (discretionary  
grounds for refusal) or with section 24(3) (mandatory grounds for refusal)? In particular,  
a. Did the Organization properly apply section 24(2)(a) (legal privilege)  
b. Did the Organization properly apply section 24(2)(b) (confidential information of  
a commercial nature) to certain requested records or parts thereof?  
c. Did the Organization properly apply section 24(2)(c) (information collected for an  
investigation or legal proceeding) to certain requested records or parts thereof?  
d. Does section 24(3)(b) (information revealing personal information about another  
individual) apply to certain requested records or parts thereof?  
5. If the withheld records contain or consist of personal information of the Applicant, and if  
section 24(2)(b) or 24(3)(b) applies to these records, is the Organization reasonably able  
to sever the information to which these sections apply, and provide the personal  
information of the Applicant, as required by section 24(4)?  
IV.  
DISCUSSION OF ISSUES  
Preliminary Issue – Scope of inquiry  
[para 10] The Applicant’s submissions to the inquiry focused on the fairness or quality of an  
investigation conducted by the Organization into an incident involving the Applicant. The  
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Applicant also raised his employment performance history, noting that prior to his termination,  
he had received excellent performance evaluations. The Applicant also points out that a written  
warning letter provided to him by the Organization in response to his access request, was  
addressed to an employee other than the Applicant.  
[para 11] How the Organization conducted an investigation into a workplace incident is not a  
matter I have jurisdiction over. Nor is whether the Organization was justified in terminating the  
Applicant’s employment; I understand that this latter question may be before the courts.  
[para 12] I do not know why the records provided to the Applicant by the Organization include  
a discipline letter from the Organization to an employee other than the Applicant. This employee  
shares the Applicant’s first initial and last name; possibly, it was provided to the Applicant in  
error. Whether the Organization breached the privacy of this other employee is not a matter  
before me in this inquiry; as such, I do not have submissions from the Organization on this point  
and make no finding. However, if this letter was provided to the Applicant in error, the  
Organization should ensure it has proper processes in place to safeguard employee information  
as required under PIPA, and to ensure that such errors are not made in the future. This is  
especially so when the record relates to a matter as sensitive as a disciplinary letter.  
1. Did the Organization comply with section 27(1)(a) of the Act (duty to assist, including  
duty to conduct an adequate search for responsive records)?  
[para 13] Section 27(1)(a) of the Act states the following:  
27(1) An organization must  
(a) make every reasonable effort  
(i) to assist applicants, and  
(ii) to respond to each applicant as accurately and completely as reasonably  
possible,  
…
[para 14] The duty to assist includes conducting an adequate search for responsive records, as  
well as informing the applicant, in a timely manner, what steps have been taken to search for the  
requested records (Order P2009-005, at para. 47).  
[para 15] The Notice of Inquiry states that this issue relates to whether the Organization  
conducted an adequate search for records, The Notice directs the Organization to provide its  
submission in the form of a sworn document describing the search it conducted in response to the  
Applicant’s request. It directs the Organization to consider addressing the following:  
The specific steps taken by the Respondent to identify and locate records responsive to  
the Applicant’s access request.  
The scope of the search conducted, such as physical sites, program areas, specific  
databases, off-site storage areas, etc.  
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The steps taken to identify and locate all possible repositories where there may be records  
relevant to the access request: keyword searches, records retention and disposition  
schedules, etc.  
Who did the search? (Note: that person or persons is the best person to provide the  
direct evidence).  
Why the Respondent believes no more responsive records exist other than what has been  
found or produced. (In answering this question the Respondent should have regard to the  
reasons the Applicant gave for believing more records exist than were located/provided to  
him/her or in answering this question the Respondent should have regard to the  
Applicant’s description of the records/kinds or records he/she believes should have been  
provided to him/her.)  
Any other relevant information.  
[para 16] With respect to the burden of proof, an applicant must show some basis that an  
organization failed to locate or provide a record in its custody or control; the burden then shifts  
to the organization to show that it conducted an adequate search (Order P2006-012 at para. 12).  
The Notice directed the Applicant to specify precisely what records he believes are missing from  
the Public Body’s response, and why he believes they exist. Rather than providing this  
information, the Applicant relied on his previously-provided request for review and request for  
inquiry as his initial submission. The Applicant’s request for review referred to records of two  
named individuals concerning the Applicant’s “character in any aspect”. His request for inquiry  
did not refer to any particular records he was seeking; it referred only to the Organization’s  
statement of defence – presumably relating to a legal proceeding between the parties – as  
containing false and defamatory statements about the Applicant.  
[para 17] The Organization states that it conducted numerous searches for responsive records.  
The searches were managed by a legal analyst in the Organization’s privacy office. The  
Organization searched the personnel database, its digital and paper repository for archived  
records, Albian Oil Sands historical HR digital records, Albian Oil Sands site access records, and  
the Organization’s legal database.  
[para 18] The Organization states that it searched the IT profiles of over 20 individuals  
identified by the Applicant. However, it was unable to search the IT profiles of the two  
individuals named in the Applicant’s request for review, as those individuals’ employment with  
the Organization ended over a year prior to the Applicant’s access request. As such, their IT  
profiles had been deleted prior to the request.  
[para 19] The initial review of this file was conducted by the Director of Mediation. After the  
Applicant requested an inquiry into the matter, the Director prepared a mediation overview letter,  
which was sent to both parties and provided to me for the inquiry. In that letter, the Director  
states that some responsive records referred to attachments, which were not included in the  
records. The Director recommended that the Organization search for those attachments. The  
Organization agreed, and located additional records, which it provided to the Applicant with  
some information withheld (Record B-3).  
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[para 20] That the Organization failed to locate these records in its initial search does not  
necessarily mean that its search was inadequate. The description provided by the Organization  
seems thorough, and the Applicant has not identified other records he expected in response to his  
request. As the Organization conducted an additional search and located attachments to records  
previously located, I am satisfied that the Organization corrected any oversight in its previous  
search.  
[para 21] I find that the Organization conducted an adequate search for records, and fulfilled  
its duty under section 27.  
2. Is the access request for the Applicant’s personal information? / Was the information  
the Organization withheld, or any of it, the Applicant’s personal information?  
[para 22] Under PIPA, an applicant has a right of access only to their own personal  
information.  
[para 23] Section 24(1) and (1.1) of the Act require an organization to provide access to an  
applicant’s personal information; these provisions state:  
24(1) An individual may, in accordance with section 26, request an organization  
(a) to provide the individual with access to personal information about the individual, or  
(b) to provide the individual with information about the use or disclosure of personal  
information about the individual.  
(1.1) Subject to subsections (2) to (4), on the request of an applicant made under subsection  
(1)(a) and taking into consideration what is reasonable, an organization must provide the  
applicant with access to the applicant’s personal information where that information is contained  
in a record that is in the custody or under the control of the organization.  
[para 24] In Order P2006-005, former Commissioner Work stated (at paras. 46-47, 50).  
In Order P2006-004, I considered the meaning of “personal information about an  
individual” within the meaning of the Act:  
The Act defines “personal information” as “information about an identifiable individual”.  
In my view, “about” in the context of this phrase is a highly significant restrictive  
modifier. “About an applicant” is a much narrower idea than “related to an Applicant”.  
Information that is generated or collected in consequence of a complaint or some other  
action on the part of or associated with an applicant – and that is therefore connected to  
them in some way – is not necessarily “about” that person.  
This reasoning applies equally to an individual’s work, which may be associated with an  
individual, but is not necessarily about the individual who performed the work.  
…
I agree with the Organization’s position that the “work product” or records produced by  
an employee in the course of employment is generally not the personal information of the  
employee. Pipeline reports, asset allocation reports, client agreements, tapes of calls,  
customer satisfaction and referrals are records created by employees as a part of their  
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employment duties. These records are not about the employee as an individual, but about  
the task at hand.  
[para 25] Order P2012-09 found that the fact that information is located in an employee’s  
personnel file does not necessarily indicate that it contains the employee’s personal information.  
Examples of records that were found not to contain an employee’s personal information included  
training materials of the organization, including forms with the employee’s signature indicating  
that the training had been completed; copies of office-wide memos; records of work-related  
meetings and attendance at meetings; and shift-related information.  
[para 26] In Order P2006-004, former Commissioner Work considered whether information  
generated or collected to address a complaint was the personal information of the individual who  
made the complaint (the applicant). He found that information about the persons named in the  
complaint, information about other third parties and their dealings with the applicant,  
descriptions of various events and transactions, and correspondence and memos related to the  
handling of the complaints and other aspects of the complaint process, were not personal  
information of the applicant. This was so, even though this information was generated as a result  
of the applicant’s complaints (see para. 18).  
[para 27] In Decision P2011-D-003, former Commissioner Work considered a similar matter:  
an access request made to a law firm for the applicants’ personal information contained in a  
client file by the firm in the course of representing a party who was opposed in interest to the  
applicants. Commissioner Work said (at paras. 30, 32):  
The fact the file contains information related to one of the Applicants because he was the  
opposing party in the legal matters does not of itself make the information “about him”. What is  
“about him” is information such as what he has said or expressed as an opinion, the fact he has  
done certain things or taken certain steps, details of his personal history, and personal details  
about him such as his name and other associated information such as where he lives or his  
telephone number. This is not meant to be an exhaustive list, but is provided to illustrate the type  
of information that is personal information, in contrast to information other than this type of  
information, that was generated or gathered by the law firm or its client for the purpose of  
pursuing the litigation. The point is that much or most of the latter may well not be the first  
Applicant’s personal information even though it relates to a legal matter that involved him. An  
obvious example would be legal opinions given to the law firm’s client as to how to deal with the  
litigation with the Applicant or associated legal matters. The way in which the law firm was  
advising its client and dealing with the legal matters may have affected the Applicants, but it was  
not “about” them in the sense meant by the definition of personal information in the Act. (This  
information would also be privileged, but the point here is that much or most of it would likely  
not be the Applicant’s personal information within the definition of the term contained in the  
Act.)  
…
These observations are made to point out that if, which seems likely, there is information in the  
“client file” of the law firm’s client that is not covered by solicitor-client privilege, or that is no  
longer covered by litigation privilege, it seems equally likely that much of it need not be  
disclosed to the Applicants in this access request because it is not their personal information. (I  
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say this despite the fact that the Law Society seems to concede the converse in its third bullet in  
para 19 of its submission.)  
[para 28] In Order P2015-05, the Director of Adjudication considered the above decision in  
the context similar to the one at hand. A former employee had made an access request to an  
Organization for his personnel file. She found (at paras. 31-33):  
The greatest part of the withheld information consists of discussions about the Applicant and his  
job-related issues amongst other employees of the Organization whose role it was to deal with  
these issues, as well as statements of other employees who recounted events involving the  
Applicant. To a large extent, these discussions include ideas or intentions as to how his  
employment issues should be dealt with. The records also include descriptions of how the  
Applicant behaved or reacted in certain situations, that are value-laden in that they reveal the  
speakers’ opinions about the Applicant and the way these persons interpreted events concerning  
him. (Because the discussions are work-related rather than personal, most of the ‘opinion’  
information in this category does not appear to be – though some of it may be – the personal  
information of the employees engaged in these discussions and making these statements.)  
With respect to such information, I agree with the reasoning in the decision of Commissioner  
Work, cited above, as well as the reasoning of the Adjudicator in Order P2012-04. Insofar as this  
withheld information consists of the intentions, ideas and opinions of the other employees, it does  
not consist solely of the Applicant’s personal information, nor does some of it consist of his  
personal information at all.  
To illustrate the latter point, X’s statement that “I believe we should take steps a, b and c to deal  
with Y’s employment complaint” is not Y’s personal information. While the fact Y has made an  
employment complaint is Y’s personal information, the steps X believes should be taken to  
address it, though related to Y, are not. Ultimately, if the steps are taken and affect Y’s situation,  
this may, at that point, be Y’s personal information, for example, that Y accepted a new position.  
However, the intervening considerations or discussions by others about the merits of the  
complaint and how to resolve it, are not. Most certainly they are not if the suggested steps are  
never effected. Even if they are, only the way Y’s situation is affected by the outcome, and not  
why and by whom this was effected, is personal information in the sense of being “about Y”  
within the terms of the Act.  
[para 29] Lastly, an organization’s duty in section 24(1.1) to provide requested personal  
information is subject to considerations of what is reasonable. As stated in Order P2008-007, the  
phrase “taking into consideration what is reasonable” under section 24(1.1) of the Act is  
informed by section 2, which states:  
2 Where in this Act anything or any matter  
(a) is described, characterized or referred to as reasonable or unreasonable, or  
(b) is required or directed to be carried out or otherwise dealt with reasonably or in a  
reasonable manner,  
the standard to be applied under this Act in determining whether the thing or matter is  
reasonable or unreasonable, or has been carried out or otherwise dealt with reasonably or in a  
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reasonable manner, is what a reasonable person would consider appropriate in the  
circumstances.  
[para 30] Former Commissioner Work discussed this limitation with respect to records  
containing only small ‘snippets’ of an applicant’s personal information. He said (at para. 131):  
I note as well that on the basis of the ability of organizations to take into account what is  
reasonable in responding to access requests under section 24 of the Act, it is open to an  
organization to argue, in appropriate circumstances, that it is not reasonable to provide access to  
an applicant’s personal information, or parts of this information. This may apply for information  
that consists of meaningless or insignificant snippets, particularly if it reveals nothing of  
substance to an applicant. It may also apply where providing information would require an  
organization to review a large volume of information only to provide an applicant with minor  
items of information of which he is already well aware, especially where there is an indication  
that the access request for such information is not being made for a bona fide purpose.  
Application to the records at issue  
[para 31] Record B-3 is described in the Organization’s submissions as both an “Incident  
Report” and “Event Detail Report”. Having reviewed this record, both characterizations are  
correct: generally it can be described as an incident report, with the specific title being “Event  
Detail Report”.  
[para 32] Based on the records, I conclude that this Report was created in response to an  
incident occurring at the Organization’s work site, involving the Applicant. It contains the  
Applicant’s personal information but is not comprised entirely of his personal information.  
[para 33] The Report contains the Applicant’s statement, made to an Organization employee  
regarding the incident. The record of the Applicant’s statement was provided to him.  
[para 34] The Report also contains other employees’ versions of events, some of which  
includes opinions about the Applicant. This is his personal information.  
[para 35] Other sections of the Report detail only the Organization’s response to the incident,  
or the steps it takes to respond to such circumstances, which is not the Applicant’s personal  
information. Some sections of the Report include personal information of individuals other than  
the Applicant. That is not his personal information.  
[para 36] Regarding records not provided to me, the Organization states records B-4 and B-5  
are comprised of witness statements of other individuals. The Organization clarifies that both  
statements are “included with the Event Detail Report (Doc B-3) but [are] subject to Litigation  
Privilege, so [have] been identified separately” (May 2022 submission, Appendix B). Given this  
description, it seems likely that these records contain the Applicant’s personal information.  
[para 37] The Organization states that record B-1 is comprised of emails between the  
Organization and legal counsel. The Organization’s affidavit of records states that these emails  
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related to advice about a termination of employment. Presumably these emails relate to the  
Applicant’s employment, in which case they likely contain his personal information.  
[para 38] Record B-2 is described as an Investigation Report into the incident. This likely also  
contains the Applicant’s personal information.  
Conclusion regarding the responsiveness of information in the records  
[para 39] The records located by the Organization contain the Applicant’s personal  
information, but are not comprised entirely of his personal information. Record B-3, which is the  
only record provided to me for the inquiry, clearly contains the Applicant’s personal information;  
however, it also contains much information that is not about the Applicant. Some information is  
about other individuals only, and other information is about how the Organization responded to  
the incident involving the Applicant. This latter information may relate to the Applicant but is  
not about him.  
3. a. Did the Organization properly apply section 24(2)(a) (legal privilege)  
[para 40] Section 24(2) sets out circumstances in which an organization may refuse to provide  
access to requested information. The Organization has applied section 24(2)(a) to information in  
records B-1, B-2, B-4 and B-5. I do not have copies of these records.  
[para 41] Section 24(2)(a) states:  
24(2) An organization may refuse to provide access to personal information under  
subsection (1) if  
(a) the information is protected by any legal privilege;  
[para 42] The Organization has cited both solicitor-client privilege and litigation privilege.  
Solicitor-client privilege  
[para 43] The test to establish whether communications are subject to solicitor-client privilege  
is set out by the Supreme Court of Canada in Canada v. Solosky, [1980] 1 S.C.R. 821. The Court  
said:  
… privilege can only be claimed document by document, with each document being  
required to meet the criteria for the privilege--(i) a communication between solicitor and  
client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended  
to be confidential by the parties.  
[para 44] The requirements of this privilege are met if information is a communication  
between a solicitor and a client, which was made for the purpose of seeking or giving of legal  
advice and intended to be kept confidential by the parties.  
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[para 45] Where an organization elects not to provide a copy of the records over which  
solicitor-client or litigation privilege is claimed, the public body must provide sufficient  
information about the records, in compliance with the civil standards set out in the Rules of  
Court (Alta Reg 124/2010, ss. 5.6-5.8). These standards were clarified in Canadian Natural  
Resources Limited v. ShawCor Ltd., 2014 ABCA 289 () (ShawCor). ShawCor states that  
a party claiming privilege must, for each record, state the particular privilege claimed and  
provide a brief description that indicates how the record fits within that privilege (at para. 36  
of ShawCor).  
[para 46] The role of this Office in reviewing claims of privilege under the Freedom of  
Information and Protection of Privacy Act (FOIP Act) was discussed in Edmonton Police  
Service v. Alberta (Information and Privacy Commissioner), 2020 ABQB 10 (EPS), at paras. 77-  
112. While this decision relates to the FOIP Act, the powers of the Commissioner under PIPA  
are substantially similar to those under the FOIP Act that it is reasonable to extend the discussion  
in EPS to reviewing claims of privilege under PIPA. I understand the Court to mean that my role  
in reviewing the Organization’s claim of privilege is to ensure that the Organization’s assertion  
of privilege meets the requirements set out in ShawCor, and that the information provided in  
support of that assertion is consistent with the relevant tests for the cited privilege.  
[para 47] The Organization claimed solicitor-client privilege over record B-1. It provided an  
affidavit of records sworn by a litigation paralegal for the Organization. This affidavit states that  
the emails are marked as solicitor-client privileged, and that the subject matter relates to a  
termination of employment for cause. The advice was sought from the Organization’s former in-  
house Senior Legal Counsel.  
[para 48] Given the context of the records, including the records that have been provided to  
me, it seems reasonable to conclude that the termination of employment relates to the Applicant.  
As the responsive records related to an investigation into a physical assault involving the  
Applicant, it seems reasonable that the Organization would seek legal advice regarding the  
Applicant’s employment following the incident.  
[para 49] The Organization’s affidavit of records did not address the third part of the Solosky  
test, which requires that the communications are intended to remain confidential. The  
confidentiality of documents over which privilege is claimed may be implicit from the nature of  
the documents themselves (Order F2007-008) or from the circumstances under and, purposes for  
which, the legal advice was being sought or given (Order F2004-003). In this case, marking  
emails as being subject to solicitor-client privilege implies that they were intended to be  
confidential. Further, the emails appear to relate to the wrongful dismissal claim the Applicant  
brought against the Organization, which is ongoing. This supports the likelihood that the emails  
were intended to remain confidential.  
[para 50] The evidence provided by the Public Body meets the requirements set out  
in ShawCor and is consistent with the test for finding solicitor-client privilege applies. I find that  
the Public Body has established its claim of privilege.  
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Litigation privilege  
[para 51] The Organization claimed litigation privilege over records B-2, B-4 and B-5. The  
Organization initially did not provide an affidavit of records to support its claim of privilege, as  
required when not providing records for an inquiry. Following its initial submission, I asked the  
Organization to provide an affidavit of records, and to provide additional information regarding  
its claim of litigation privilege. I said:  
Regarding the Organization’s claim of litigation privilege, the Organization should explain how  
the “dominant purpose” part of the test is met. The discussion of litigation privilege in Order  
F2020-16 at paras. 103-130 might be relevant to this case. If so, the Organization should explain  
whether and how the principles discussed in that Order (and/or other relevant principles or case  
law as appropriate) apply in this case.  
[para 52] Litigation privilege was discussed in the Supreme Court of Canada decision Lizotte  
v. Aviva Insurance Company of Canada, 2016 SCC 52. The Court said (at para. 19):  
Litigation privilege gives rise to an immunity from disclosure for documents and communications  
whose dominant purpose is preparation for litigation. The classic examples of items to which this  
privilege applies are the lawyer’s file and oral or written communications between a lawyer and  
third parties, such as witnesses or experts: J.-C. Royer and S. Lavallée, La preuve civile (4th ed.  
2008), at pp. 1009-10.  
[para 53] In Order F2020-16, I reviewed the case law on litigation privilege (at paras. 109-  
112):  
It is not sufficient for litigation to be one of the purposes for the preparation of the record.  
Further, litigation must be the purpose for the creation of the record, not the purpose for which it  
was later obtained (ShawCor). In ShawCor, the Court of Appeal considered whether records  
created for the purpose of an investigation were protected by litigation privilege after litigation  
was contemplated. More specifically, the records were created for an investigation that would  
have been completed even if litigation had never been contemplated. The Court stated that “the  
purpose behind the creation of a record does not change simply because the record is forwarded  
to, or through, in-house counsel” (at para. 87). In other words, where a record is created for an  
investigation, and that record will be completed for the purpose of the investigation regardless of  
whether litigation is anticipated, the dominant purpose of that record might be for the  
investigation even if it is later used in the litigation.  
In Witwicky v. Seaboard Life Insurance Co., [1998] A.J. No. 1468, the Court found that the  
dominant purpose for a letter requested by an insurance claimant from his physician was to  
provide additional information to the insurance company about the claim, and not for the  
litigation that the claimant subsequently initiated (see esp. paras. 11-21).  
In North American Road Ltd. v. Hitachi Construction Machinery Co., 2005 ABQB 847 (),  
the Court rejected the argument that records over which litigation privilege was being claimed by  
an insurance company were created for the purpose of determining an insurance claim, not the  
later litigation. The Court came to this conclusion based on the fact that the insurance company  
had retained an expert who would not have been retained for a claim where litigation had not  
been contemplated.  
12  
In Specialty Steels v. Suncor Inc., 1997 ABCA 338, the Alberta Court of Appeal concluded that  
the relevant time for assessing the dominant purpose of a record is at the time it was created  
(completed), rather than the time it was requested. A record may have been requested for one  
purpose (e.g. an investigation) but another purpose (e.g. for use in litigation) may become the  
dominant purpose prior to the creation/completion of that record (see paras. 8-9).  
[para 54] Regarding record B-2, the Investigation Report, the Organization’s affidavit states  
that the dominant purpose of the Report “was to compile facts and information setting out the  
legal basis for termination of the employee’s employment in contemplation of litigation against  
Shell Canada Limited for wrongful dismissal.” The affidavit further states that there is ongoing  
litigation relating to the subject matter of the Report (presumably, the Applicant’s wrongful  
dismissal claim).  
[para 55] I accept the Organization’s affidavit on this point; I find that it meets the  
requirements set out in ShawCor and is consistent with the test for litigation privilege.  
[para 56] Regarding records B-4 and B-5, the Organization states that they both consist of  
witness statements that were “included with the Event Detail Report (Doc B-3) but [are] subject  
to Litigation Privilege, so [have] been identified separately” (May 2022 submission, Appendix  
B).  
[para 57] The Organization’s affidavit of records states for these records that they are subject  
to litigation privilege “as there is current and ongoing litigation before the Alberta Courts  
directly related to the subject matter of the statement” and that “[t]he statement is by an  
individual who is likely to be called as a witness at the trial of this Action.”  
[para 58] As set out above, it is not sufficient to state that a record is likely to be relevant to, or  
used in, a contemplated or ongoing litigation in order for litigation privilege to be claimed. The  
Organization did not claim litigation privilege over record B-3, the Event Detail Report, which it  
states that these witness statements were a part of. As such, it is unclear how the witness  
statements but not the remainder of the record were created for the dominant purpose of  
litigation. Indeed, the Organization did not state in its affidavit of records that B-4 or B-5 were  
created for the dominant purpose of litigation, only that they are related to the litigation. This  
does not appear to meet the test for litigation privilege.  
[para 59] I do not need to make a determination on this point. For the reasons discussed below,  
I am satisfied that these records were properly withheld under section 24(2)(c).  
Conclusions regarding section 24(2)(a)  
[para 60] I accept that the Organization properly claimed privilege under section 24(2)(a) for  
records B-1 and B-2.  
13  
Exercise of discretion  
[para 61] Section 24(2)(a) of PIPA is a discretionary provision; this means that even if the  
exception applies to requested information, an organization must properly exercise its discretion  
to determine whether the information should nevertheless be disclosed to the applicant.  
[para 62] However, past Orders of this Office have found that once solicitor-client privilege  
has been established, withholding the information is usually justified for that reason alone (see  
Orders F2007-014, F2010-007, F2010-036, and F2012-08 citing Ontario (Public Safety and  
Security) v. Criminal Lawyers’ Association, 2010 SCC 23 ()).  
[para 63] I agree and given the Supreme Court of Canada’s discussion of litigation  
privilege in Lizotte v. Aviva Insurance Company of Canada, I would extend this rationale to  
information protected by litigation privilege.  
3. b. Did the Organization properly apply section 24(2)(b) (confidential information of a  
commercial nature) to certain requested records or parts thereof?  
24(2) An organization may refuse to provide access to personal information under  
subsection (1) if  
…
(b) the disclosure of the information would reveal confidential information that is of  
a commercial nature and it is note unreasonable to withhold that information;  
…
[para 64] The Organization’s initial submission states that it has applied this provision to  
information in the records, but did not specify which information or how this provision applies.  
The index of records provided with the Organization’s rebuttal submission does not list section  
24(2)(b) as an exception being applied by the Organization. The rebuttal submission merely  
refers to section 24(2)(b) as a basis for withholding information in the records but does not  
elaborate further.  
[para 65] Without knowing what information this exception applies to, or how it applies, I  
cannot consider the application of that exception.  
3. c. Did the Organization properly apply section 24(2)(c) (information collected for an  
investigation or legal proceeding) to certain requested records or parts thereof?  
[para 66] The Organization has applied this provision to all of the information it withheld in  
the responsive records. This provision states:  
24(2) An organization may refuse to provide access to personal information under  
subsection (1) if  
…
(c) the information was collected for an investigation or legal proceeding;  
14  
…
[para 67] Section 24(2)(c) of the Act permits an organization to withhold personal information  
that was collected for an investigation or legal proceeding. Section 1(1)(f) of PIPA defines  
“investigation”, in part, as follows:  
1(1)(f) “investigation” means an investigation related to  
(i) a breach of agreement,  
(ii) a contravention of an enactment of Alberta or Canada or of another province of  
Canada, or  
(iii) circumstances or conduct that may result in a remedy or relief being available  
at law,  
if the breach, contravention, circumstances or conduct in question has or may have  
occurred or is likely to occur and it is reasonable to conduct an investigation;  
[para 68] “Legal proceeding” is defined at section 1(1)(g) of the Act as:  
(g) “legal proceeding” means a civil, criminal or administrative proceeding that is  
related to  
(i) a breach of an agreement,  
(ii) a contravention of an enactment of Alberta or Canada or of another province  
of Canada, or  
(iii) a remedy available at law;  
[para 69] Past Orders of this Office have found that an employer can conduct an investigation,  
within the definition in PIPA, of a possible breach of an employment agreement. Order P2013-13  
discusses this point (at paras. 28, 42-43):  
An investigation can be an investigation of possible misconduct or non-compliance in relation to  
a rule or policy incorporated into an employment agreement (see, e.g., Order P2008-007 at para.  
29). In this case, the Organization notes that the employment offer letter that it wrote to the  
Complainant expressly referred, albeit in general fashion, to the  
Organization’s employment policies and procedures. As for the particular policy in question, the  
Organization says that it was investigating the Complainant’s possible breach of its policy  
governing personal calls made on Blackberry devices, which policy it submits formed part of  
his employment agreement just like any of the Organization’s other policies and procedures. It  
accordingly takes the position that it was investigating a breach of agreement, as contemplated by  
section 1(f)(i) above [which was renumbered 1(1)(f)(i), effective May 1, 2010]. The  
Organization does not argue that it was investigating any possible contravention of an enactment,  
or any possible circumstances or conduct that might otherwise result in a remedy or relief being  
available at law.  
…
Alternatively, as also set out in the definition of “investigation” reproduced above, there may be a  
possible contravention of an enactment, but the personal calls made by the Complainant did not  
contravene any law. Still alternatively, there may be circumstances or conduct that may result in  
a remedy or relief being available at law, such as the ability to discipline or terminate an  
15  
employee. For example, an employee’s telephone calls may allegedly have harassed or  
threatened others, or tarnished the reputation of the employer. In such instances, it may not be  
necessary to have an express policy against such behaviour, either because the prohibition against  
such behaviour may be considered an implied term of the employment agreement, or the  
behaviour would otherwise warrant disciplining or terminating the employee. However, as noted  
earlier, the Organization bases its submissions on the existence of a policy and does not argue that  
the Complainant’s use of the Blackberry device was so egregious that a policy was not required in  
order to permit its investigation of his call record. I would not find that his behaviour was so  
egregious, in any event.  
To summarize, I find that there was no policy that restricted or prohibited the ability of the  
Complainant to make personal calls using the Blackberry, and there was therefore no such policy  
incorporated into his employment agreement. This means, in turn, that there could be no possible  
breach of the Complainant’s employment agreement, no investigation as that term is defined  
in PIPA, and no ability for the Organization to rely on section 14(d) and 17(d) in order to collect  
and use the Complainant’s personal information. In this particular case, because there was no  
applicable policy, there was nothing to investigate.  
[para 70] Other Orders, such as Order P2008-007, referred to in the quote above, relate to  
particular conduct, such as an allegation of harassment, being investigated as a possible breach of  
an employment agreement. In this case, the records before me clearly relate to a physical  
altercation involving the Applicant, which was investigated by the Organization. The records  
show that the Applicant’s employment was terminated as a result of the incident.  
[para 71] I have reviewed the Event Detail Report (record B-3). It details the incident  
involving the Applicant, from the point of the initial call made to the Organization’s dispatch. It  
is clear that the Organization’s security area responded to the call and spoke to those involved, as  
well as other witnesses. I am satisfied that the physical altercation being investigated could  
amount to a breach of the Applicant’s employment contract, and that the Organization was  
conducting an investigation within the terms of section 1(1)(f)(i). In the alternative, given the  
resulting termination, section 1(1)(f)(iii) also seems applicable.  
[para 72] Records B-4 and B-5 are described as witness statements included with the Event  
Detail Report. As such, I find that they were also collected for an investigation under section  
24(2)(c).  
Conclusions regarding section 24(2)(c)  
[para 73] I find that section 24(2)(c) applies to the information withheld in records B-3, B-4  
and B-5.  
Exercise of discretion  
[para 74] Section 24(2)(c) of PIPA is a discretionary provision; this means that even if the  
exception applies to requested information, an organization must properly exercise its discretion  
to determine whether the information should nevertheless be disclosed to the applicant.  
16  
[para 75] I asked the Organization to explain how it exercised its discretion to withhold  
information under section 24(2). The Organization responded with its May 27, 2022 submission.  
It provided its explanation of its exercise of discretion in camera. Given the content of the  
explanation and the ongoing proceeding between the parties, I accepted this part of the  
Organization’s submission in camera.  
[para 76] The Organization explained that some of the records contain statements that were  
provided in confidence. The Organization also pointed to the ongoing litigation between the  
parties regarding the matter that is the subject of the records at issue. It noted that some records  
are likely to be used in the proceeding.  
[para 77] I accept that the Organization properly exercised its discretion to withhold  
information collected for an investigation in the context of a litigation involving the Applicant,  
which relates directly to the information in the records.  
3. d. Does section 24(3)(b) (information revealing personal information about another  
individual) apply to certain requested records or parts thereof?  
[para 78] The Organization applied section 24(3)(b) to information in record B-3, which was  
provided to me. It also applied this provision to records B-2, B-4 and B-5, which were also  
withheld as privileged and not provided for the inquiry.  
[para 79] I have accepted that section 24(2)(c) applies to this information; therefore, I do not  
need to consider whether this provision also applies.  
4. If the withheld records contain or consist of personal information of the Applicant, and  
if section 24(2)(b) or 24(3)(b) applies to these records, is the Organization reasonably  
able to sever the information to which these sections apply, and provide the personal  
information of the Applicant, as required by section 24(4)?  
[para 80] Section 24(4) states that if the third party personal information can reasonable be  
severed from the records, the Organization must provide access to the remainder:  
24(4) If, in respect of a record, an organization is reasonably able to sever the  
information referred to in subsection (2)(b) or (3)(a), (b) or (c) from a copy of the record  
that contains personal information about the individual who requested it, the  
organization must provide the individual with access to the record after the information  
referred to in subsection (2)(b) or (3)(a), (b) or (c) has been severed.  
[para 81] The duty under this provision does not apply to information withheld under sections  
24(2)(a) or (c). As I found that sections 24(2)(a) and (c) apply to the withheld information, I do  
not need to consider the application of section 24(4).  
V.  
ORDER  
[para 82] I make this Order under section 52 of the Act.  
17  
[para 83] I find that the Organization conducted an adequate search for records.  
[para 84] I find that the Organization properly claimed privilege under section 24(2)(a) for  
records B-1 and B-2. I find that the Organization did not provide sufficient support for its claim  
of litigation privilege for records B-4 and B-5.  
[para 85] I find that the information in records B-3, B-4 and B-5 was properly withheld under  
section 24(2)(c).  
___________________________  
Amanda Swanek  
Adjudicator  
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