Federal Court dismisses awkward solicitor-client privilege claim

Earlier this year, the Federal Court dismissed a claim that a column in a spreadsheet was subject to solicitor-client privilege because disclosure would reveal legal advice obtained prior to its development.

Solicitor-client privilege (literally) protects advisory communications between a solicitor and its client, and it can protect such communications if they find their way into other documents. For example, if two employees of a lawyer’s client discuss the (corporate) lawyer’s advice confidentially via e-mail, their description of the advice may be redacted in response to a production requirement because its disclosure would reveal the solicitor-client communication.

In this case, a corporate taxpayer argued that a column in a spreadsheet was protected by solicitor-client privilege based on the same rationale. It relied on an affidavit that explained that it received legal advice prior to the development of the column and that disclosure of the column would reveal it “by what is being computed, how the computation is done,” and “by associated text in the reacted column.” The Court exercised its discretion to review the prior legal advice and held that the column was simply the “operational outcome or end product of legal advice” and not protected.

This is a fact specific, though illustrative outcome. Even the fact of obtaining legal advice on a particular matter is sensitive and ought normally be kept secret because, once disclosed, inferences can be drawn about advice taken based on the “operational outcome” or “end product” of the advice. Of course, a lawyer’s legal advice can be either be accepted or rejected or followed precisely or loosely, but clients are often drawn to back the legitimacy of their actions by reference to their careful adherence to legal advice. That’s plainly a risk.

In this case, it is unclear whether something precipitated the (more basic) disclosure of an advisory relationship, but one can see how arguing the resulting inference can be very awkward and risky. The only way to do it is to “double down” and disclose more about the advisory relationship and the resulting inference. If not it inviting of waiver in the underlying advice (which the Court did not find here), it seems to be one step down a slippery slope to that outcome.

Canada (National Revenue) v. BMO Nesbitt Burns Inc., 2022 FC 157.

ABCA decision on defending allegations about privileged communication

On April 12th, the Court of Appeal of Alberta held that a defendant waived solicitor-client privilege by affirmatively pleading that its counsel had no instructions to agree to a time extension for filing a prospectus.

The defendant faced a lawsuit that alleged its counsel gave a time extension and had the actual authority to do so. The majority judges explained that a party faced with such an allegation about a privileged communication can make a bald denial and safely rest on its privilege. The defendant went further, thereby putting its privileged communications in issue.

PetroFrontier Corp v Macquarie Capital Markets Canada Ltd, 2022 ABCA 136 (CanLII).

The perils of e-mail attachments and privilege claims

The Court of Appeal for Saskatchewan issued a freedom of information judgement last week that illustrates a good practice point for FOI practitioners: claim privilege over privileged e-mails and their attachments together.

“Record 1” was an e-mail sent to Ministry legal counsel for the purposes of obtaining legal advice about its attachments. Though part of the privileged communication, the Ministry indexed the attachments as “Record 2” and “Record 3.” It claimed that the attachments were privileged, and also exempt pursuant to the Saskatchewan exemption for “information obtained in confidence from other governments.”

By making its exemption claims in this way, the Ministry revealed that it sought legal advice on communications (and information) it received from other governments. Is it any surprise, then, that the Court affirmed a finding that the attachments were not protected by solicitor-client privilege?

While viewing the Court’s finding is understandable, I don’t agree that it is correct. The attachments to (privileged) Record 1 are clearly part of a privileged communication. As part of that communication (and not necessarily on their own), the attachments are privileged. The Ministry ought to have better protected its privilege by indexing Record 1 in its entirety and, if Records 2 and 3 were responsive on their own, indexing each separately.

Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 (CanLII).

Federal Court of Appeal – litigation database privileged, no production based on balancing

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).

Court says privilege in letters left online waived

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).

NSCA denies privilege claim for statement made in collective agreement bargaining

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).

Legal Privilege and Data Security Incident Response – Law and Practice

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.

View this document on Scribd

Sask CA says Commissioner’s request for privileged communications unnecessary

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.

Hint of compromise not necessary to shield meeting communications with settlement privilege

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.

Man CA gives broad protection to lawyers’ reporting letters

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).