Focus On

Legal community masses forces for set piece battle over privilege

Thursday, March 31, 2016 @ 8:00 PM | By Cristin Schmitz

Organized bar groups are massing at the Supreme Court of Canada again to repel what they contend are state attacks on the adversarial justice system.

The Federation of Law Societies, the Canadian Bar Association, the Advocates Society and the Criminal Lawyers’ Association have variously intervened in separate appeals at the top court which ask when — and how — solicitor-client privilege and litigation privilege may be abrogated by the state and, in particular, what degree of legislative clarity is necessary to override these pillars of the justice system.

“These cases are very important to the day-to-day work of lawyers because privilege claims arise in virtually every case, and in many administrative proceedings,” explains University of Ottawa law professor Adam Dodek, author of the textbook, Solicitor-Client Privilege. “There is a need for certainty as to how courts, and especially administrative officials, deal with privilege claims, lest the whole process gets bogged down in interlocutory appeals,” he said.

On March 24, the Supreme Court was slated to hear an appeal from a 2015 Quebec Court of Appeal decision which held that litigation privilege cannot be abrogated by inference — i.e. that regulators or other statutory officials cannot gain access to documents covered by litigation privilege in the absence of clear and express statutory language. In this case a provincial regulator, who was overseeing an insurance adjuster, sought records that the employer insurance company claimed were shielded by litigation privilege. The appeal court agreed, effectively raising the protection for litigation privilege to the lofty heights accorded solicitor-client privilege: Lizotte v. Aviva Insurance Company of Canada [2015] J.Q. no 383.

Mahmud Jamal of Toronto’s Osler, Hoskin & Harcourt LLP, co-counsel in the case for the intervener Canadian Bar Association, said the Quebec regulator’s appeal offers the high court its first opportunity to set the standard for legislative abrogation of litigation privilege. The case also marks just the second time the court has addressed the scope of litigation privilege — “a critical issue for the legal profession” because that privilege is “a cornerstone of our adversarial process,” Jamal said.

“When, and under what circumstances, can a regulator pry into a lawyer’s litigation brief, while the litigation is still under way, in order to examine the lawyer’s litigation strategy, trial preparation and other material collected or prepared for the dominant purpose of actual or apprehended litigation?” Jamal asked. “If the court finds that litigation privilege can be abrogated by inference, it would expose lawyers’ briefs to regulatory scrutiny while litigation is still under way, in the absence of clear and explicit statutory language. This would dramatically expand the circumstances in which regulators could access information protected by litigation privilege.”

(Litigation privilege refers to the protection from disclosure accorded to information gathered or created in the litigation context, as distinct from solicitor-client privilege, which shields confidential communications between lawyers and clients).

On April 1, the Supreme Court will explore a similar theme in Information and Privacy Commissioner of Alberta v. Board of Governors of the University of Calgary — an appeal that affects all practising lawyers.

“The question before the court is, what is the standard of legislative clarity required in order for legislation to abrogate solicitor-client privilege?” explained Jamal, co-counsel in that case with David Rankin for the intervener Federation of Law Societies (FLSC).

“Can solicitor-client privilege be abrogated by inference, based on a purposive reading of the legislation, even if the legislation is not otherwise explicit?” Jamal asked by e-mail. “The issue is of profound importance to the legal profession, and to the law societies across Canada, because solicitor-client privilege is a critical foundation of our system of justice. It promotes access to justice by facilitating the seeking and giving of legal advice.”

The two appeals have at their core a single question: when can regulators access privileged information?

In the Alberta case, the province’s information and privacy commissioner ordered the University of Calgary to produce all employment records related to, and requested by, a former university employee who made a human rights complaint against her ex-employer, and also sued for constructive dismissal. The university claimed solicitor-client privilege over records related to the legal advice it sought from its in-house and external counsel. The commissioner’s delegate ordered the university to produce the records so he could determine whether the privilege claim was properly made. His decision was upheld on judicial review, but the Alberta Court of Appeal set it aside. For the court, Justice Russell Brown, since elevated to the Supreme Court, held that the commissioner did not have the requisite express statutory authority to compel production, for purposes of review, of records over which a public body, such as the university, has asserted privilege. Section 56 of Alberta’s Freedom of Information and Protection of Privacy Act says a public body must produce a record to the commissioner despite “any privilege of the law of evidence.”

Does that wording comply with the Supreme Court’s edict in Canada (Privacy Commissioner) v. Blood Tribe Department of Health 2008 SCC 44 that clear and explicit language is required and that solicitor-client privilege cannot be abrogated by inference?

The FLSC, the umbrella group for Canada’s 14 law societies, argues it is not correct to characterize solicitor-client privilege as a mere evidentiary rule, as the privilege has evolved, through Supreme Court jurisprudence, into a fundamental substantive right. “Backtracking on privilege as a fundamental substantive right would thus unravel decades of the court’s jurisprudence and much of the modern law of privilege,” Jamal argues.

But the commissioner argues public bodies are incorrectly applying Blood Tribe to stymie disclosure, regardless of the statutory code in question, resulting in a lack of access, transparency in government and fairness to people making access requests. Wording similar to Alberta’s in other provinces’ statutes has also been interpreted by the privacy commissioners of New Brunswick and Quebec as enabling them to review records to confirm the veracity of solicitor-client privilege claims. “It is not the case that records over which solicitor-client privilege is asserted can never be reviewed by a tribunal to determine whether the assertion of privilege is properly made, unless the statute uses the words ‘solicitor-client’ privilege,’” Alberta’s information and privacy commissioner says in her written argument. “That is not the principle articulated in Blood Tribe.”

Dodek noted by e-mail that since 1999 the Supreme Court has heard an average of nearly one case per year dealing with solicitor-client privilege — demonstrating that “solicitor client privilege is central to the administration of justice in Canada.”

“In fact, solicitor-client privilege hasn’t really ‘lost’ out at the Supreme Court in over a decade,” he pointed out.

The Supreme Court also has under reserve two tax law cases which raise similar issues. In A.G. Canada v. Chambres des notaires du Quebec [2014] QCCA 552, argued last November, the judges are asked to address, with respect to the Income Tax Act (ITA), what statutory wording is required to abrogate solicitor-client privilege in the context of the tax agency’s power to request accounting records. Lawyers’ groups successfully argued below that the ITA’s narrow definition of solicitor-client privilege, which excludes lawyers’ and notaries’ accounting records, is not legally effective to abrogate solicitor-client privilege, or if it is, it is unconstitutional. As in the freedom of information context, the court is also asked to clarify the Blood Tribe decision’s application and limits.

Also under reserve since Dec. 4, 2014, is Revenue Canada v. Thompson which asks whether “accounting record” under the ITA should be construed restrictively to exclude privileged information, such as clients’ names, in the context of tax enforcement proceedings against a lawyer (as opposed to the context of collecting tax from a lawyer’s clients, as in the Chambres des notaires case).