Case Report – “Crime and fraud” exception to solicitor-client privilege broadly framed

In March 2007, the Ontario Superior Court of Justice held that the “crime and fraud” exception to solicitor-client privilege applies to communications made in furtherance of perpetrating all forms of tortious conduct that may become the subject of a civil proceeding. As noted by Mr. Justice Perell, this finding may be “contentious” because it establishes an arguably broader exception than endorsed in two of the Court’s earlier decisions: see Rocking Chair Plaza (Bramalea) Ltd. v. Brampton (City) (1988), 29 C.P.C. (2d) 82 (Ont. H.C.J.) and Hallstone Products Ltd. v. Canada (Customs and Revenue Agency), [2004] O.J. No. 496 (S.C.J.). His honour distinguished the case at bar on the facts, which involved an e-mail sent to counsel during the time frame that intentional infliction of mental suffering was alleged (i.e., pre-litigation) and that he held to be prima facie evidence of the same.

Dublin v. Montessory Jewish Day School of Toronto (2007), 85 O.R. (3d) 511 (Ont. S.C.J.)

Case Report – FCA gives effect to statutory privilege in access dispute

On August 27th, the Federal Court of Appeal held that information provided by the Canadian Imperial Bank of Commerce to the Canadian Human Rights Commission as part of an employment equity audit was exempt from public access as “information supplied in confidence.”

The request, made under the Access to Information Act, was for a final employment equity report that primarily contained information provided by the bank to the Commission in the course of an employment equity audit. In arguing against disclosure, the bank relied heavily on section 34(1) of the Employment Equity Act, which creates a statutory privilege for all information obtained by the Commission under the Act. This provision is not listed in Schedule II to the ATIA, which lists nineteen other statutory privilege provisions. Information that is protected by a Schedule II provision is expressly exempt from public access by section 24 of the ATIA.

The Commission decided to disclose the report and the Federal Court dismissed the bank’s application for judicial review. On appeal, the bank argued that the report was not subject to public access because it was not under the Commission’s control, that the report was not subject to public access because the information it contained was privileged and, alternatively, that the record was exempt from public access under a number of specific provisions of the ATIA. The Canadian Bankers Association intervened in the appeal, expressing a broader interest in the confidentiality of bank disclosures to a number of federal regulators under similar statutory privilege provisions.

In the end, the Court dismissed the bank’s broader arguments and held the report was exempt from disclosure based on section 20(1)(b) of the ATIA as information provided in confidence and treated consistently in a confidential manner. It held that the application judge erred on a number of bases in finding this exemption did not apply. Most significantly, it held the application judge erred in finding that the bank had no reasonable expectation of confidentiality because the right of public access in the ATIA expressly applies “notwithstanding any other Act of Parliament” and because the Commission had warned the bank that its information could be subject to public access. Rather, the Court held that the statutory privilege in section 34(1) of the Employment Equity Act provided a reasonable basis for the bank’s belief that the information in question would be held in confidence and held that the bank had also met the other requirements of the section 20(1)(b) exemption.

While the Federal Court of Appeal judgement offers strong support for the application of the section 20(1)(b) to records of information provided to federal regulators and protected by a statutory privilege, the Court did note the requirement to bring the record within the scope of the exemption in every case: “A statutory guarantee of confidentiality is not, in and of itself, a sufficient basis for a claim of exemption under paragraph 20(1)(b) of the ATIA.”

Canadian Imperial Bank of Commerce v. Canada (Human Rights Commission), 2007 FCA 272 (CanLII).