Some spill files to stay sealed, court decides
Other Husky records on pipeline rupture in river go to prosecutors
A Regina judge has given federal prosecutors access to detailed records related to the leak detection system on a Husky Energy Inc. oil pipeline that failed in July 2016, spilling thousands of litres of heavy crude into the North Saskatchewan River.
More than 90 other spill-related documents seized from the Calgary-based company during the execution of a search warrant last year, however, are privileged and can remain sealed, according to the Court of Queen's Bench of Saskatchewan ruling handed down last month.
Justice Jeff Kalmakoff issued his decision more than six months after federal prosecutors investigating the spill argued Husky should be forced to disclose the documents, which were among the 25,000 records seized on March 23.
In his decision, filed after the number of documents at stake had been “distilled down” to 96 from approximately 580, Kalmakoff concluded all but three were subject to solicitor-client privilege or litigation privilege, which protects materials used to prepare lawsuits.
Husky argued 10 of the 96 documents were protected by solicitorclient privilege. Kalmakoff agreed, noting that such privilege is fundamental to the legal system and must be “jealously guarded, and should only be set aside in the most unusual circumstances.”
Husky contended the remaining 86 documents were created as part of its internal investigation into the spill, which was launched to prepare for one or more lawsuits, and should therefore be protected by litigation privilege, according to the decision.
Prosecutors contended that Husky's analysis was “not straightforward,” as the company had a legal obligation to conduct an investigation and the documents at stake would have been created regardless of whether the company expected to be sued.
After examining each of the documents in question, including expert reports, Kalmakoff concluded all but three of the documents were privileged, and Husky did not waive its privilege on the expert reports created during its investigation.
“Husky has not, in my view, unfairly cherry-picked the material to include in the 'final report,' nor has it inaccurately characterized the nature of the expert reports,” Kalmakoff wrote in the decision.
Mel Duvall, a spokesman for the energy giant, said in an email that the company has little to add beyond the judge’s decision.
“It was our position that the documents were privileged and for the most part the judge agreed,” he wrote.
Amélie Desmarais, a spokeswoman for Environment and Climate Change Canada, which is leading the federal investigation, said in an email it would be inappropriate for her to comment because the investigation is ongoing.
The Saskatchewan government is also investigating the spill. In March 2017, it turned over the results of that probe to prosecutors, who will determine if charges under the province’s environmental protection legislation are warranted.
The provincial Ministry of Justice has not yet issued a decision on the matter.
Husky received permission to restart the pipeline in October, almost 18 months after it failed on July 20, 2016, spilling 225,000 litres of crude and causing havoc downstream. Cleanup has cost the company at least $107 million.