E-mails sent to in house counsel for “simultaneous review” not privileged

Master Short of the Ontario Superior Court of Justice issued a decision on December 21st in which he held that e-mails merely copied to in house counsel were not subject to solicitor-client privilege. Here is the principle Master Short endorsed:

If the document was prepared for purposes of simultaneous review by legal and non-legal personnel, it cannot be said that the primary purpose of the document is to secure legal advice.

The idea that a communication for “simultaneous review” by legal and non-legal personnel is not privileged seems too broad and should be understood based on the facts in this case, which involved a standing order to copy in house counsel on all correspondence related to a business conflict (with significant legal ramifications) so counsel would be “in the loop.” If a communication goes “to” counsel and “to” another business official in the context of an ongoing advisory relationship pertaining to a matter, the inference about the purpose of the communication is significantly different than if counsel is merely copied. Barring other facts, the communication ought to be privileged.

Humberplex v. TransCanada Pipelines, 2011 ONSC 4815 (CanLII).

Federal Court protects CJC’s “fact finder” report

On December 13th, the Federal Court held that a report prepared by Professor Martin Friedland to the chair of a judicial conduct committee was subject to solicitor-client privilege and therefore not to be filed in a judicial review of the chair’s decision to dismiss a complaint.

Although Professor Friedland was retained under Canadian Judicial Council policy to make “further inquires” into a judicial conduct complaint – a fact-finding role in its essence – the Court held that his communication to the chair was best considered to be legal advice given Friedland’s status as a lawyer and the legal context for his communication. It said:

I agree with counsel for the CJC that for an investigator to be able to “attempt to clarify the allegations against the judge and gather evidence which, if established, would support or refute those allegations”, to quote from the Complaint Policy, he or she must know the legal elements of the specific allegations and of the notions of “judicial misconduct” and “incapacity” more broadly. In the case at bar, for example, Mr. Slansky alleged in his 16-page letter, bias, abuse of office, improper motive and knowingly acting contrary to the law. For the investigator to determine whether there is evidence that would support these allegations, he or she must be able to determine the materiality of the evidence. This is fundamentally a legal exercise, as it requires an assessment of whether there is a probative connection between the facts to be proved and the facts in issue as determined by the substantive law. Relevance and materiality are determined by the trier of law in a court proceeding, whereas the weight to be given to that evidence is for the trier of fact (Bryant, Lederman and Fuesrt, The Law of Evidence in Canada, pp 56-58, ss 2.49-2.50). Once again, it was essential for the investigator to be well versed in the principles of substantive law and evidence, to be in a position to assess whether the examples provided by Mr. Slansky in support of his complaint, amount to mere errors of law that are better left to an appeal court or whether they do raise, when considered in isolation or as a whole, the sort of concerns put forward by Mr. Slansky…

In light of the foregoing, therefore, I agree with CJC that counsel could only gather and examine relevant facts and present his or her findings and analysis through a legal framework or analysis. There is no doubt in my mind that Professor Friedland was retained by the CJC in his professional capacity as a lawyer, with the intention of providing assistance through his legal knowledge and analysis.

The Court also held that privilege applied to the entire report, making clear that the common law generally does not contemplate the severance and partial disclosure of a privileged communication. The Court also held that Professor Friedland’s report was subject to public interest privilege given the special need to encourage full and frank participation in the investigation process.

Slansky v. Canada (Attorney General), 2011 FC 1467.

Ont. C.A. Affirms Sealing Order to Protect Settlement Privilege Pending Agreement’s Approval

Today the Ontario Court of Appeal affirmed an order that sealed information about the amount of monies to be paid under a settlement agreement that was subject to court approval.

The order applied only to information about monies to be paid and not to the entire agreement. It also had a provision that allowed non-settling parties to obtain access to sealed information upon signing a confidentiality agreement to allow them to participate in the approval proceeding without encumbrance.

The Court held that the the order was based on the important interest in promoting settlement that is recognized by litigation privilege doctrine and that this interest was not outweighed by the interest in holding an open approval proceeding. It also held that the order was not over-broad.

Court approval of the proposed agreement was required under the Companies’ Creditors Arrangement Act. In making its finding, the Court said, “we leave to another day the issue of whether the privilege always attaches to other settlements requiring court approval, for example, class action settlements or infant settlements, where different values and considerations may apply.”

Hollinger Inc. (Re), 2011 ONCA 579.

HRTO Orders Applicant to Consent to Use and Disclosure of Student Record for Proceeding

On August 5th, the Human Rights Tribunal of Ontario held than an applicant implicitly consented to the use and disclosure of information in his Ontario Student Record by putting the information into issue in his application.

Section 266 of the Ontario Education Act deems the OSR to be privileged subject to student or guardian consent. The applicant (through his next friend) referred to information in his OSR in his application and expressed an intention to use information in his OSR in pursuing his application. The applicant was not, however, forthcoming with consent to allow the responding school board to use the OSR in it’s defence.

The Tribunal did not entertain the board’s argument for a finding that the section 266 privilege is waived in whole upon the filing of an application by a student in respect of educational services. It did articulate a principle that supports implicit consent to use and disclose relevant information in an OSR in support of a defence:

Based on the particulars in the Application, as well as the applicant’s own expressed intention to rely on parts of the OSR, the applicant has implicitly consented to at least some use and disclosure of the OSR by the respondent in order to defend itself. However, in subsequent correspondence and submissions the applicant’s next friend explicitly seeks to place a number of conditions on her consent. I am not satisfied that the restrictions she seeks to place are necessary to protect the privacy of the OSR documents and information. The respondent is not receiving documents, through a disclosure process, in which it otherwise has no interest or responsibilities. It is still subject to its obligations under the Education Act. To the extent that it may use or disclose documents or information from the OSR for the purposes of the proceeding before the Tribunal, it is also subject to the Tribunal’s Rules on the confidentiality of documents. The applicant cannot rely on documents and information from the OSR in the Application, while seeking to prevent the respondent from using the same in order to present its case. I find it necessary, for a fair and just proceeding, for the respondent to be able to use and disclose documents and information from the OSR, subject to the time limitation addressed below.

…

Where an application is filed which claims discrimination in educational services and it is apparent that a respondent school board must use and disclose information from an OSR in order to defend itself, including to file a full response, the Tribunal will consider, on request from such a respondent, whether the application should proceed unless an applicant provides explicit consent to use and disclose information that information.

The Tribunal ordered the applicant to provide explicit consent for the use and disclosure of information falling within a relevant time period, failing which it would consider dismissing the action as an abuse of process.

T.S. v. Toronto District School Board, 2011 HRTO 1471 (CanLII).

Court Directs Employer to Give Former Employee Access to E-Mails for Privilege Review

On June 29th, Justice Moir of the Supreme Court of Nova Scotia directed a means by which parties to a wrongful dismissal action could deal with privileged communications sent and received by the plaintiff on his former employers’ work system. He directed a review by the plaintiff and his counsel, either at the defendant counsel’s office or elsewhere with an undertaking by plaintiff’s counsel not to make copies.

Justice Moir’s order also includes a thorough discussion about the discovery of facts obtained by a witness in a communication that is subject to litigation privilege.

Hat tip to Peg Duncan!

Saturley v. CIBC World Markets Inc., 2011 NSSC 310.

Question of Remedy for Privilege Breach Back to Securities Commission in Knowledge House Affair

On Thursday, the Nova Scotia Court of Appeal issued a judgement about the Knowledge House affair, which has become as notable for the handling of an e-mail server containing solicitor-client communications as for the securities law issues at its heart.

In 2005, Justice Scanlan issued a scathing judgement in which he rejected an argument that certain individuals had waived privilege by sending communications over a company-owned server. In the result, he ordered removal of counsel who had seized the server and reviewed e-mails in prosecuting a civil claim on behalf of National Bank Financial Limited.

The Nova Scotia Securities Commission obtained privileged communications from NBFL and allegedly reviewed them in aide of its investigation. The Court of Appeal dealt with the affected persons’ quest for a remedy against the Commission in 2006. Justice Cromwell (as he then was) held that the affected persons’ application for certiorari was premature, but said the Commission should take “serious and immediate steps” to do right. The Commission did not respond to the Court’s suggestion by initiating proceedings to resolve the privilege issue. Instead, it issued formal allegations. The affected persons then moved before the Commission for a remedy. In June 2010, after numerous intervening proceedings, the Commission held that the privilege breach issue should not be bifucated and dealt with in advance of the merits of the Commission’s allegations.

Thursday’s decision is strictly procedural. Though it recognized that the hanging investigation and privilege question has been “stressful and costly” for the affected persons, the Court held that the delay in hearing the request to remedy the privilege breach was understandable and that the request for a remedy could be dealt with by way of a voire dire at the commencement of the hearing of the Commission’s allegations. It upheld the Commission’s decision.

Wadden v. Nova Scotia (Attorney General), 2011 NSCA 55.

FCA Side-Steps Challenge to Admin Tribunal’s Power to Determine Privilege, Gives Guidance

On March 23rd, the Federal Court of Appeal outlined how administrative tribunals should deal with solicitor-client privilege claims.

The matter involved a disputed solicitor-client privilege claim brought before the Public Service Labour Relations Board. The Court held that the Board erred by ordering the Canada Revenue Agency to file an affidavit in support of its privilege claim based on an assumption that the withheld communications were relevant. This finding allowed the Court to avoid answering the CRA’s challenge to the PSLRB’s authority “to determine a claim for privilege.” The Court did comment, however:

Whether or not a tribunal has the legal authority to determine if documents are subject to solicitor-client privilege, it may conduct a preliminary screening, without inspecting them or issuing an order that would breach the privilege if validly claimed. A bare assertion of privilege should not be allowed to automatically derail the conduct of a proceeding if the tribunal has no authority to decide the validity of the claim, any more than a tribunal with authority to decide a privilege claim should inspect the document the moment a party challenges the validity of the claim.

If a tribunal is not satisfied on the basis of the information available to it that the documents
in question are capable of being the subject of a valid claim for solicitor-client privilege, it can admit them or order their production. If the tribunal is not satisfied that the documents may be relevant to issues in dispute before it, it will exclude them or not order their production on this ground. In either case, the tribunal’s rulings would be subject to appeal or judicial review.

Canada (Attorney General) v. Quadrini, 2011 FCA 115 (CanLII).

IMAPS 2011 – The Sedona Canada Panel on Privacy and E-Discovery

Alex Cameron and I presented on e-discovery and privacy today at “IMAPS 2011” on behalf of the Sedona Canada working group. The Information Management Access Privacy Symposium is a fantastic annual event hosted by the Office of the Chief Information and Privacy Officer of Ontario. It was an honor to present.

Alex and I were one talking head short of an honest “panel,” but nonetheless had some good back-and-forth in delivering a presentation that is meant to provide a general overview of the privacy and e-discovery topic, with a focus on law and practice applicable to the Ontario public sector. Slides below.

NSCA Opines on Waiver of Privilege

Last Friday, the Nova Scotia Court of Appeal issued a judgment in which it affirmed a finding that that the province’s Department of Transportation and Infrastructure Renewal waived privilege by providing a summary of an opinion to citizen who later requested a copy of the full opinion in an FOI request.

The Court rejected the Department’s argument that privilege held by the provincial crown can only be waived by the executive branch. It said that, “a court should look at the authority of a particular government actor and determine whether the advice sought and any waiver ‘follow’ or is ‘coextensive’ with that person’s subject-matter and/or territorial responsibilities.”

The Court also affirmed a finding that the Department official who disclosed the summary did not “voluntarily evince an intention” to waive privilege by making the summary. It did not quarrel with case law the Department put forward for the principle that sharing the conclusions of a legal opinion does not indicate an intention to waive privilege. Rather, the Court relied on the application judge’s finding that the offical had disclosed reasons for the opinion along with the “heart of the opinion.”

Finally, the Court made a comment on waiver of privilege based on the need to promote fairness and consistency. It did not outright reject the Department’s argument that the fairness and consistency basis for waiving privilege applies only in the context of litigation, but suggested (at para. 42) that fairness issues are engaged when a government actor responds to valid queries from a citizen by reference to a legal opinion.

Nova Scotia (Transportation and Infrastructure Renewal) v. Peach, 2011 NSCA 27 (CanLII).

What happens when institutions withhold records in which they claim solicitor-client privilege from an FOI adjudicator?

The Information and Privacy Commissioner/Ontario issued a university-sector FOI order late last year that dealt with a solicitor-client privilege claim. The outcome turns on the facts, but the order is nonetheless notable because it contains a narrative of how the IPC dealt with the University’s decision to only provide an index of records and supporting affidavit based on its solicitor-client privilege claim. Though not very clear in the order, it appears the IPC asked for a supplemental affidavit (to deal with exclusion claims also made to the withheld records), which led to an agreement to allow the IPC adjudicator to attend at the University to examine the records.

For another window into the process by which the IPC deals with institutions who elect not provide records to review, see this Divisional Court decision from last March.

York University (Re), 2010 CanLII 77658 (ON I.P.C.).