Master Glustein contextualizes privilege finding in Trillium Motor World

30 Jun

On June 17th, Master Glustein of the Ontario Superior Court of Justice confirmed that the finding in Trillium Motor Worldthat legal information (versus advice) conveyed from a firm to its client was not privileged – was driven by a unique context:

[9] Plaintiffs’ counsel sought to rely on the recent decision in Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2013 CarswellOnt 3828 (“Trillium”), in which Justice Belobaba ordered that documents that disclosed “legal information” would not be subject to privilege. However, Justice Belobaba did not set out a general principle that when a client seeks advice for general legal information, rather than a particular legal situation, privilege is waived.

[10] In Trillium, an issue in the class action was whether the defendant law firm (“Cassels”) had been retained by the plaintiff dealers or whether Cassels had been retained by the Canadian Automobile Dealers Association (“CADA”). The issue before Justice Belobaba on the motion was whether CADA properly asserted privilege on documents between CADA and Cassels.

[11] Justice Belobaba distinguished between “legal advice” sought by CADA from its counsel (which would be privileged) and “legal information” obtained by CADA to understand the effect of the General Motors bailout in 2009 to better assist its dealer-members (which would not be privileged). Justice Belobaba held (Trillium, at para. 13):

Thus, if CADA sought and received advice from its counsel at CBB about its role and responsibility as a national dealer organization and its rights and duties given its mandate and jurisdiction, or sought and received advice with respect to the content of the memos it proposed to send out to its membership (to ensure they were legally accurate and did not expose CADA to legal liability), that would certainly amount to “legal advice” as described above. However, if CADA was simply asking its counsel for information about the federal bankruptcy process”or the CCAA in order to better understand the situation and thus better assist its dealer-members, that would not be legal advice as defined in the case law.

[12] Consequently, the distinction relied upon by Justice Belobaba was whether certain “legal information” was not advice to the client but rather information to better assist its members. It was in that context that Justice Belobaba distinguished between the terms “legal information” and “legal advice”, as those terms were put forward by Cassels and CADA.

[13] In that context, the term “legal information” (as defined by CADA and Cassels) consisted of “providing answers regarding the law generally, the options available, and the relevant legal procedures that might pertain” and “how it would affect the dealers”. The term “legal advice” was defined as “advice that is given with respect to the client’s legal rights and duties and is given on the understanding that it may well be followed” (Trillium, at paras. 11-12).

[14] In other words, Justice Belobaba did not reduce the scope of solicitor-client privilege to allow disclosure of general legal information sought by a client since he included in the term “legal advice” any advice “with respect to the client’s legal rights and duties and [which] is given on the understanding that it may well be followed” or any advice “from its counsel at CBB about its role and responsibility as a national dealer organization and its rights and duties given its mandate and jurisdiction, or sought and received advice with respect to the content of the memos it proposed to send out to its membership (to ensure they were legally accurate and did not expose CADA to legal liability” (Trillium, at paras. 12-13).

[15] Consequently, in Trillium, legal advice would include both general legal advice to understand rights and particular advice on a particular problem. The disclosure of “legal information” was not privileged in Trillium because it had not been obtained to advise CADA but was general information to be transmitted to its dealers.

[16] If Trillium were read to reduce the scope of solicitor-client privilege to allow production of any general legal information provided by counsel for the purpose of advising a client as to its rights or obligations, it would be a dramatic change to the sanctity of solicitor and client privilege protected under the principles in Guelph discussed above.

Master Glustein also reviews a number of other principles that govern solicitor-client privilege.

578115 Ontario Inc o/a McKee’s Carpet Zone v Sears Canada Inc, 2013 ONSC 4135 (CanLII).

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