Case Report – Court opines on authority to waive privilege

Last December 16th, the Nova Scotia Supreme Court held that the province’s Department of Transportation and Infrastructure Renewal waived privilege by providing a summary of an opinion to citizen who later requested a copy of the full opinion in an FOI request.

The Court had little trouble finding an intention to waive, noting that the only remaining concern of the Department was over releasing a letter that embodied the opinion and not the opinion itself. More interesting is the Court’s rejection of the Department argument that waiver of privilege held by the provincial crown must be waived by the executive branch. It held that the authority to waive privilege in an opinion prepared for the crown is at least coextensive with the authority to acquire an such an opinion.

In the current edition of Canadian Lawyer magazine the requester’s council says, “I think this decision is the first time that a court has stated that a civil servant can waive privilege over legal advice received within his authority.”

Peach v. Nova Scotia (Transportation and Infrastructure Renewal), 2010 NSSC 91.

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