FCA Side-Steps Challenge to Admin Tribunal’s Power to Determine Privilege, Gives Guidance

On March 23rd, the Federal Court of Appeal outlined how administrative tribunals should deal with solicitor-client privilege claims.

The matter involved a disputed solicitor-client privilege claim brought before the Public Service Labour Relations Board. The Court held that the Board erred by ordering the Canada Revenue Agency to file an affidavit in support of its privilege claim based on an assumption that the withheld communications were relevant. This finding allowed the Court to avoid answering the CRA’s challenge to the PSLRB’s authority “to determine a claim for privilege.” The Court did comment, however:

Whether or not a tribunal has the legal authority to determine if documents are subject to solicitor-client privilege, it may conduct a preliminary screening, without inspecting them or issuing an order that would breach the privilege if validly claimed. A bare assertion of privilege should not be allowed to automatically derail the conduct of a proceeding if the tribunal has no authority to decide the validity of the claim, any more than a tribunal with authority to decide a privilege claim should inspect the document the moment a party challenges the validity of the claim.

If a tribunal is not satisfied on the basis of the information available to it that the documents
in question are capable of being the subject of a valid claim for solicitor-client privilege, it can admit them or order their production. If the tribunal is not satisfied that the documents may be relevant to issues in dispute before it, it will exclude them or not order their production on this ground. In either case, the tribunal’s rulings would be subject to appeal or judicial review.

Canada (Attorney General) v. Quadrini, 2011 FCA 115 (CanLII).

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