Case Report – Federal Court comments on confidentiality of drafts

4 Dec

On November 30th, the Federal Court dismissed a federal Access to Information Act application about the application of the solicitor-client privilege exemption. Notably, Montigny J. made the following comment about the confidentiality of draft documents:

The Supreme Court also held in Blank, supra, that there is often a potential for overlap of legal advice privilege and litigation privilege in the litigation context. Legal advice privilege may continue to apply to material to which litigation privilege no longer attaches (Blank, at para. 49). I have found that there are several examples of this kind of overlap in the case at bar. This is true, in particular, of draft court documents or submissions. These draft documents remain protected by legal advice privilege under s. 23 of the Act even though the final version of these documents may have been released once the litigation privilege that applied to them had come to an end. Draft court documents, while being drafted, represent an interchange between solicitor and client, wherein the solicitor provides the client with direction or options as to the legal position to be taken in pending litigation. The client, in turn, comments on that legal advice, provides further instructions, and so forth. Draft court documents and submissions are, by their very nature, intended to be confidential. It is only the final version that is filed with, or submitted to, the court that is not so intended. The draft court documents or submissions clearly satisfy the three criteria set out in Solosky, supra, for legal advice privilege.

This reasoning has general significance to the law of solicitor-client privilege. It is also relevant to exemptions such as the government advice exemption in Ontario freedom of information legislation. The IPC/Ontario, I believe, has taken the position that draft records do not reveal “advice” and are therefore not exempt from public access.

Blank v. Canada, 2009 FC 1221.

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2 Responses to “Case Report – Federal Court comments on confidentiality of drafts”

  1. KLO December 4, 2009 at 4:29 am #

    Would this be applicable to drafts between solicitor and the retained “experts”?

  2. Dan Michaluk December 5, 2009 at 1:11 am #

    Thanks for the question Kevin. The best answer is “no.”

    I read the quote as saying a draft document is a communication that represents advice or recommendation by a solicitor. The expert’s advice is something different, and the Ontario Court of Appeal has said (in Lifford Wine Agencies) that an expert’s input to a solicitor is generally not essential to the solicitor-client relationship. I’ve heard people question this rule based on the Ontario Court of Appeal’s decision in Bruce Power from earlier this year, but I’m not sure Bruce Power is that strong authority on this point.

    If an expert is retained and creates a record for the dominant purpose of litigation it will be subject to litigation privilege. There are rules of court that require a party to produce an expert’s foundational materials notwithstanding litigation privilege if the expert will be called as a witness at trial. There’s a case noted in my Ontario rules that says drafts don’t need to be produced under the Ontario rule – Kelly v. Kelly (1990), 42 C.P.C. (2d) 181 (Ont. U.F.C.). I could have sworn I blogged about a case that went the other way, but can’t seem to find it. In any event, I think the production of expert drafts issue is about a very different principle than the production of a lawyer’s drafts, so this case is not germaine.

    Thanks for making me think, and hope that helps!

    Dan

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