FCA opines on breadth of continuum of communications protected by s-c privilege

25 May

On April 17th the Federal Court of Appeal issued a judgement that nicely illustrates the scope of the continuum of communications that are protected by solicitor-client privilege. Justice Stratas explained that operational policies that are the product of legal advice are not privileged unless they truly embody the legal advice:

[28] In determining where the protected continuum ends, one good question is whether a communication forms “part of that necessary exchange of information of which the object is the giving of legal advice”: Balabel, supra at page 1048. If so, it is within the protected continuum. Put another way, does the disclosure of the communication have the potential to undercut the purpose behind the privilege – namely, the need for solicitors and their clients to freely and candidly exchange information and advice so that clients can know their true rights and obligations and act upon them?

[29] For example, where a Director of a government department receives legal advice on how certain proceedings should be conducted and the director so instructs those conducting proceedings, the instructions, essentially cribbed from the legal advice, form part of the continuum and are protected: Minister of Community and Social Services v. Cropley 2004 CanLII 11694 (ON SCDC), (2004), 70 O.R. (3d) 680 (Div. Ct.). Disclosing such a communication would undercut the ability of the director to freely and candidly seek legal advice.

[30] In some circumstances, however, the end products of legal advice do not fall within the continuum and are not privileged. For example, many organizations develop document management and document retention policies and circulate them to personnel within the organization. Often these are shaped by the advice of counsel. However, such policies are usually disclosed, without objection, because they do not form part of an exchange of information with the object of giving legal advice. Rather, they are operational in nature and relate to the conduct of the general business of the organization.

[31] Similarly, an organization might receive plenty of legal advice about how to draft a policy against sexual harassment in the workplace. But the operational implementation of that advice – the policy and its circulation to personnel within the organization for the purpose of ensuring the organization functions in an acceptable, professional and business-like manner – is not privileged, except to the extent that the policy communicates the very legal advice given by counsel.

The Court held that a protocol negotiated between the DOJ and  RCMP that dealt with the civil production of documents held by the RCMP was not privileged except for its first three paragraphs, which memorialized legal obligations for the benefit of DOJ and RCMP personnel working under the protocol.

Canada (Public Safety and Emergency Preparedness) v Information Commissioner of Canada, 2013 FCA 104 (CanLII).

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