On October 20th, the Federal Court of Appeal set aside an order that required the federal Crown to disclose the field names it had used in its litigation database along with the rules used to populate the fields. It held the order infringed the Crown’s litigation privilege.
The case management judge made the order in a residential schools abuse class action. The Crown had produced approximately 50,000 documents, with many more to come. The plaintiffs sought the fields and rules (and not the data in the fields) to facilitate their review. The case management judge, though acknowledging litigation privilege, judged the fields and rules as less revealing than the data in the fields and ordered production in the name of efficient procedure.
The Court of Appeal held that the case management judge erred because they “subordinated the Crown’s substantive right to litigation privilege to procedural rules and practice principles.” It also held, “a party attempting to defeat litigation privilege must identify an exception to litigation privilege and not simply urge the Court to engage in a balancing exercise on a case-by-case basis.”
Canada v. Tk’emlúps te Secwépemc First Nation, 2020 FCA 179 (CanLII).
On May 5th the Court of Appeal for Newfoundland and Labrador affirmed a finding that a party had waived its solicitor-client privilege in two letters that had been published online.
The letters contained legal opinions to a defendant to an outstanding civil action. They were authored about five and nine years before the action was commenced, but apparently are “highly relevant” to the action. The plaintiffs downloaded the letters from the internet and produced them back to the defendant, which provoked the defendant’s privilege claim.
The defendant had learned the documents were circulating about six months prior to receiving the plaintiffs’ production when contacted by a CBC reporter and one of the plaintiffs (who also posted the letters on her Facebook). It decided not to attempt to take down the letters from the internet because of the expense and, in the Court’s words, because “the genie was out of the bottle and control over the documents would be virtually impossible to maintain.” Strangely, the defendant did not advise its defence counsel of the problem, so defence counsel only asserted privilege after receiving production (again, about six months later).
In these circumstances, the Court of Appeal held that privilege had been waived. Its key findings were as follows:
- The defendant itself was aware of the publication of the letters well before the plaintiffs produced the letters in the litigation, but did not assert privilege against the plaintiffs. That defence counsel did not know that the letters were circulating until the plaintiffs produced them was irrelevant. Privilege belongs to the client, not its counsel.
- Plaintiff counsel’s act of downloading of the letters from the internet for use in the litigation ought not be presumed to be improper. Although the Court confirmed that opposing counsel are obliged not to take advantage of an inadvertent disclosure of privileged communications, in this case the letters were somewhat old and it appears that the existence of an inadvertent disclosure was simply not reasonably apparent.
- It was not wrong for the application judge to consider the lack of evidence about safeguarding efforts in deciding the waiver issue against the defendant: “A privilege-holder ought to be able to provide some evidence of how the privileged documents were safe-guarded to protect the privilege for it is within its power to do so.”
This is a careful judgement that’s directed at the facts. In my reading of it, the Court leaves some (though perhaps limited) room to assert privilege against an opposing party in litigation even though documents make their way inadvertently to the internet and are left there because “the genie is out of the bottle.”
Federation of Newfoundland Indians Inc. v Benoit, 2020 NLCA 16 (CanLII).
On March 10th, the Nova Scotia Court of Appeal held that a government statement made to the province’s teachers union in the course of collective agreement bargaining was not subject to settlement or case-by-case privilege.
The union has brought an application that alleges breach of the duty to bargain in good faith and a Charter infringement. The statement it wishes to use in this application is hardly a secret. The Deputy Minister of Finance and the Treasury Board apparently told the Union’s lead negotiator that, if the teachers did not accept an offer, the Government would introduce legislation to impose lower compensation. The negotiator then conveyed the statement to the union’s 9,300 person membership by way of letter in advance of a ratification vote.
In this context the Court held that the a privilege claim could not be rightly made. In addressing the settlement privilege claim, the Court also held that the inevitability of litigation could not be presumed.
Nova Scotia (Attorney General) v Nova Scotia Teachers Union, 2020 NSCA 17 (CanLII).
I’m off to a cyber conference in Montreal this week to sit on a panel about threat exchanges. My role will be to address the legal risks associated with sharing threat information and a university’s ability to effectively assert a confidentiality interest in the same information. I’m genuinely interested in the topic and have prepared not just one, but two papers!
Here is the first one – a nuts and bots presentation on privilege and data security incident response. I hope it is useful to you. Feedback welcome through PMs.
On May 16th the Court of Appeal for Saskatchewan held that the Office of the Information and Privacy Commissioner, Saskatchewan should not have required the University of Saskatchewan to produce communications that it claimed were subject to solicitor-client privilege.
The Commissioner began by inviting the University to provide evidence that supported its privilege claim. The University filed an affidavit from a non-lawyer stating that legal counsel had advised that “some” of the withheld documents are subject to solicitor-client privilege. It did not file an index of records.
This led the Commissioner to immediately request the records. Although the Commissioner had asked the University for a index of records, it did not ask again – an omission that the Court held to breach the principle that demands an adjudicator only review solicitor-client communications when absolutely necessary to assess a privilege claim.
This fact-specific decision illustrates how strictly the absolute necessity principle will be enforced. The Court also spoke about what privilege claimants ought to be required to present in support of their claims. In doing so, it suggested that an index that identifies records will ordinarily provide an adequate basis for assessing a privilege claim in the absence of any evidence suggesting a claim is “ill founded”.
University of Saskatchewan v Saskatchewan (Information privacy Commissioner), 2018 SKCA 34.
On July 6th, the Ontario Superior Court of Justice held that communications exchanged in a settlement meeting need not demonstrate “a hint of compromise ” to be subject to settlement privilege. Such a requirement would be inappropriate, the Court said, given the ebb and flow of a settlement meeting. Here are the key quotes:
In my view, where the communications in question are made in a meeting the purpose of which is to attempt to resolve a dispute, as opposed to through a written communication that may or may not be marked “without prejudice”, different considerations apply to the third requirement for settlement privilege. This is because a participant at such a meeting cannot be expected to calibrate the words chosen in each sentence spoken during an open, free-flowing and unscripted conversation to ensure that each sentence meets the three requirements for settlement privilege.
In my view, the communications at a meeting that is held for the purpose of attempting to settle a dispute, when considered after the fact, do not need to reveal a willingness by either side to compromise the litigious dispute in order for settlement privilege to be engaged. Even if the dispute is not resolved, and even if no offer of settlement is made during the meeting by one side, or by either side, if the first two requirements for settlement privilege are satisfied, then the communications at the meeting will be protected by settlement privilege if the purpose of the meeting was to attempt to effect a settlement of the dispute (unless an exception applies).
Singh v. Progressive Conservative Party of Ontario et al, 2017 ONSC 4168.
On June 29th, the Court of Appeal of Manitoba held that the law has evolved such that reporting letters in real estate transactions (though often primarily summarizing facts) should be presumptively subject to solicitor-client privilege. It said, “Such correspondence is the direct result of a lawyer providing legal advice or otherwise acting as a lawyer, is descriptive of the services provided by the lawyer and arises as a result of the solicitor-client relationship.” This represents a change in Manitoba law, though is consistent with case law in other jurisdictions, including Ontario.
R v Douglas, 2017 MBCA 63 (CanLII).
On July 4th the Court of Appeal of Alberta held that a chambers judge erred by accepting a claim that all documents created or collected in the course of an internal investigation were privilege without conducting a record-by-record analysis.
Legal counsel for the company initiated the investigation after a workplace fatality and directed the investigation team to segregate the investigation documents and to endorse all material as privileged and confidential. Legal counsel later swore that the dominant purpose of the investigation was the contemplation of litigation, which the chambers judge said, “invariably and logically leads to the collateral finding that, within the context of Suncor’s internal investigation that was carried out in anticipation of litigation, the information and documents created and/or collected during the internal investigation with the dominant purpose that they would assist in the contemplated litigation, are integrally covered by litigation privilege.”
The Court of Appeal held that the chambers judge erred by not conducting an analysis about the reason for the creation of each record (or bundle of records). It explained that statements may have been taken, for example, under a standing workplace protocol or that surveillance video or business records may have been collected – and that neither kind of record would be the subject of a proper privilege claim.
Alberta v Suncor Inc, 2017 ABCA 221 (CanLII).
It is inappropriate to closely parse solicitor-client communications in assessing the scope of privilege; the entire “continuum of communications” must be protected. This is the principle articulated in a June 8th decision of the Court of Appeal for British Columbia.
The Court allowed the appeal of a chambers judge order to produce parts of a series of e-mails between a government lawyer and staff at an administrative tribunal. The content ordered to be produced included:
- two paragraphs and two sentences of a ten paragraph advisory e-mail in which the chambers judge suggested the lawyer stepped beyond his role as legal advisor and impinged upon the tribunal’s decision-making authority;
- a follow-up e-mail that the chambers judge held was not privileged for similar reasons; and
- follow-up correspondence between (internal) clients discussing the lawyer’s advice.
The Court held that all this communication was part of the “continuum of communications” that supported the solicitor-client relationship and was therefore privileged. It held there was no basis for a finding that the lawyer usurped the tribunal’s decision making authority, also stating:
In my view, it is in the nature of legal advice that it may influence the decision-making of the client. The purpose of legal advice is normally to advise the client on the best course of action to comply with the relevant law. Advice provided to a statutory decision-maker as to what should be done in order to be legally defensible is still legal advice.
The dispute arose after the above communications were inadvertently disclosed in response to a freedom of information request made by a law firm. The receiving lawyer obtained the communications as part of a disclosure package in which government made a number of exemption claims. She believed government to have waived privileged and used the communications in a proceeding, which led government to assert its privilege claim and claim its disclosure was inadvertent. The Court held there was no waiver. It wasn’t highly critical of the receiving lawyer given these facts, but reminded lawyers of their duty to give notice when they receive communications that are apparently privileged.
British Columbia (Attorney General) v. Lee, 2017 BCCA 219 (CanLII).
On November 29th, the Court of Appeal for British Columbia held that a party must voluntarily inject into the litigation legal advice it received or its understanding of the law before waiver of solicitor-client privilege can be implied. It is not enough, according to the Court, for the privilege holder’s state of mind to be relevant. The Court therefore held that a party had not waived privilege over legal advice obtained that related to a misrepresentation by another that it pleaded it had reasonably relied upon.
Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471 (CanLII).