The Ontario Superior Court of Justice has issued two production-related decisions in litigation flowing from the 2005 Air France crash in Toronto. On December 12th of last year, it held that the Transportation Safety Board should produce Air France’s cockpit voice recorder. On January 14th, it ordered Air France to produce relevant medical records and an internal investigation report.

Strathy J. issued the cockpit voice recorder decision. He held that production was warranted despite the statutory privilege for “on-board recordings” in section 28 of the Transportation Safety Board Act. This privilege is based on a need to protect pilot privacy and a need to encourage free communication between pilots, both necessary given that continuous voice recording is invasive. Strathy J. held that, in the circumstances, these interests did not outweigh the public interest in the “integrity of the judicial fact-finding process and the reliability of the evidence before the court.” He stressed that the cockpit voice recorder evidence was highly relevant, probative and reliable and that the pilots’ remaining privacy interest was minimal given their pre-crash communications were fully probed by the TSB and discussed publicly in its accident report.

Master Brott issued the second production-related decision. She rejected Air France’s argument that that production of a captain’s medical records should not be ordered given strict French privacy laws and because Air France had produced a certificate of medical fitness. She held that the captain was a party to the action, that “Medical records in France and Ontario belong to the patient” and that the records were relevant in light of the pleadings. Master Brott also rejected an argument that an internal investigation report prepared by Air France as a matter of due diligence was immune from production on account of case-by-case privilege.

Société Air France v. Greater Toronto Airports Authority, 2009 CanLII 69321 (ON S.C.).

Société Air France v. Greater Toronto Airports Authority et al, 2010 ONSC 432 (CanLII).

On February 24th, the Ontario Superior Court of Justice declined to disqualify plaintiff counsel for its contact with a former employee of the defendant who the defendant alleged had received related confidential information in the context of a solicitor-client relationship while employed.

Plaintiff counsel represented various adult entertainment establishments in an action against the Toronto Police Services Board for matters arising out of a large scale investigation that was led by O’Mara. It claimed the TPSB was vicariously liable for O’Mara’s conduct.

In 2001, right around his retirement, O’Mara met with lawyers for the TPSB to discuss his evidence. Sometime later O’Mara contacted plaintiff counsel about providing them with private investigation services. In 2003 plaintiff counsel retained O’Mara on two files unrelated to the action against TPSB in which he prepared affidavits. It’s not clear why, but the plaintiffs produced the affidavits in the TPSB action, at which point the defendants objected to plaintiff counsel’s contact with O’Mara.

The Court held that disqualification was not justified because O’Mara did not receive confidential information attributable to a solicitor-client relationship. In doing so, it declined to apply a rebuttable presumption that such information was communicated because O’Mara did not meet with the TPSB as a client and, unlike in the Court of Appeal’s recent Humber v. Stewart decision, was a neither a potential expert witness nor responsible for giving instructions to counsel as a member of management. It said:

In light of the above, there is no reason to consider that the communications between counsel and O’Mara were other than an ordinary interview with a potential witness to obtain information from the potential witness. The fact that the potential witness was still, at the time, employed with the TPS does not change the nature of the communications. They were part of an interview with a potential witness, and not shown to be of a kind to make it reasonably likely that confidential information would be imparted to Mr. O’Mara.

In obiter, the Court also held that the relationship between O’Mara and plaintiff counsel did not support  a presumption that any information within O’Mara’s knowledge would likely have be misused.

728654 Ontario Inc. (Locomotion Tavern) v. Ontario (Attorney General), 2010 ONSC 1184 (CanLII).

On February 16th, the Newfoundland Supreme Court – Trial Division, held that the Newfoundland Information and Privacy Commissioner cannot require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requester a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.” The Commissioner argued that section 52(3) allows it to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It made a purposive argument and also adduced text from a legislative committee report that suggested the Commissioner be granted a power of review that would operate “notwithstanding any law or privilege.”

The Court relied on the long line of jurisprudence that establishes solicitor-client privilege can only be abrogated by clear and unequivocal language, including the Supreme Court of Canada’s recent Blood Tribe decision. It held that reference to “a privilege under the law of evidence” is not clear indication that the legislature intended solicitor-client privilege to be infringed because solicitor-client privilege is an rule of evidence and a substantive legal right. It explained:

By the time the ATIPPA came into force, solicitor-client privilege had been broadened beyond a mere rule of evidence for more than twenty years. Section 52(3) refers only to “privilege under the law of evidence”. Again, this language is simply not expansive enough to capture the breadth of solicitor-client privilege as a substantive rule which the Supreme Court of Canada describes as a “fundamental civil and legal right”. The interpretation proposed by the Commissioner cannot be achieved by the words in section 52(3). To suggest otherwise would necessitate ignoring the evolution of the privilege as described by the Supreme Court of Canada.

The Court also held that the Commissioner’s power to review access decisions does not include a power to adjudicate solicitor-client privilege claims because such claims involve substantive rights that exist independently of the Act.

Hat tip to David Fraser.

Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 31 (CanLII).

On November 30th, the Federal Court dismissed a federal Access to Information Act application about the application of the solicitor-client privilege exemption. Notably, Montigny J. made the following comment about the confidentiality of draft documents:

The Supreme Court also held in Blank, supra, that there is often a potential for overlap of legal advice privilege and litigation privilege in the litigation context. Legal advice privilege may continue to apply to material to which litigation privilege no longer attaches (Blank, at para. 49). I have found that there are several examples of this kind of overlap in the case at bar. This is true, in particular, of draft court documents or submissions. These draft documents remain protected by legal advice privilege under s. 23 of the Act even though the final version of these documents may have been released once the litigation privilege that applied to them had come to an end. Draft court documents, while being drafted, represent an interchange between solicitor and client, wherein the solicitor provides the client with direction or options as to the legal position to be taken in pending litigation. The client, in turn, comments on that legal advice, provides further instructions, and so forth. Draft court documents and submissions are, by their very nature, intended to be confidential. It is only the final version that is filed with, or submitted to, the court that is not so intended. The draft court documents or submissions clearly satisfy the three criteria set out in Solosky, supra, for legal advice privilege.

This reasoning has general significance to the law of solicitor-client privilege. It is also relevant to exemptions such as the government advice exemption in Ontario freedom of information legislation. The IPC/Ontario, I believe, has taken the position that draft records do not reveal “advice” and are therefore not exempt from public access.

Blank v. Canada, 2009 FC 1221.

On October 9th, the British Columbia Court of Appeal held that the privilege in section 517(5) of the Canada Elections Act is not a bar to production.

The section deems the fact that a person entered into a compliance agreement and any statement in a compliance agreement that admits responsibility for a violation of the Act to be inadmissible as evidence. The Court held that the provision only deems evidence to be inadmissible and does not bar production. It also held that the information, in the circumstances, was not subject to litigation privilege.

Ontario courts have read the statutory privilege governing an Ontario Student Record similarly. See, for example, the McNeil case.

Lougheed Estate v. Wilson, 2009 BCCA 438.

On June 12th, the Divisional Court issued a decision in which it held that documents protected by settlement privilege are exempt from public access under the Ontario Freedom of Information and Protection of Privacy Act. This finding is of consequence itself, but the purpose-driven means by which the Divisional Court reached its secrecy-favouring finding are very significant.

The facts in the case are simple. The LCBO denied access to various records related to a mediated settlement of a number of civil proceedings between itself and a winery. The LCBO relied on the “solicitor-client privilege” exemption in section 19 of FIPPA. This exemption has two branches. Branch 1 exempts records that are subject to solicitor-client privilege and litigation privilege as these privileges are conceived at common law. Branch 2 exempts records that are “prepared by or for Crown counsel for use in giving legal advice or in contemplation or for use in litigation.”

The requester appealed to the Information and Privacy Commissioner/Ontario, who held that Branch 1 of section 19 does not exempt records that are subject to to settlement privilege from public access. The IPC also held that the LCBO did not prove that the records were exempt under Branch 2 of section 19 because, having not submitted affidavit evidence, the LCBO had not proved its stated intention to use the records in litigation should the mediation have failed.

The Divisional Court held that the records were exempt because they were subject to settlement privilege and because they fit within the Branch 2 exemption.

The first finding is very remarkable because the Court relied on FIPPA’s purpose provision rather than any one of the sixteen enumerated exemptions in FIPPA. In effect, the Court created an implied exemption from public access. It stated:

I conclude that the public policy interest in encouraging settlement as embodied in the common law concept of settlement privilege trumps the public policy interest in transparency of government action, in the circumstances of this case. I turn, then, to analyze this conclusion within the context of the indicators of legislative meaning proposed by professor Sullivan.

This interpretation is plausible because it complies with the legislated text (s. 1(a) of FIPPA) which provides for “necessary exemptions” that are “specific and limited.” The exemption is “necessary” to maintain confidentiality of negotiated settlements. The exemption is “specific” and “limited” in that i is specific to and limited by the circumstances of this case. A case-by-case analysis ensures settlement privilege will always be specific to and be limited by particular fact situations.

This interpretation is efficacious because it promotes the legislative purpose of creating exemptions where necessary, provided the exemptions are limited and specific.

This interpretation is acceptable because it leads to a conclusion that is both reasonable and just. As noted earlier in these reasons, no party would willingly entertain settlement discussions with a government institution if it knew its confidential settlement discussions would be made public. This is particularly so where admissions would be made and concessions offered that would be detrimental to that party. If required to discuss settlement by the Rules, those discussion would not, I suggest, be meaningful.

The Court also held that Branch 2 of section 19, interpreted purposely, ought to exempt materials otherwise subject to settlement privilege as a class. It said:

The LCBO asserted before the IPC that the mediation materials were intended for use in litigation should the mediation fail. The IPC refused to consider this because of a finding that there was no evidence to this effect. It is unnecessary for me to resolve this dispute, other than to say it is obvious that some materials used in any mediation will subsequently be used to prepare for trial and at the trial itself…

The wording of Branch 2 imposes no temporal limits on the protection provided nor limits it to particular types of litigation documents, nor specifies specific steps in the litigation. Nothing in the legislative text suggest that the term “litigation” should be given a different mening than that adopted by the courts and reflected in the Rules [of Civil Procedure]. Such an interpretation complies with the legislative text.

Such an interpretation of Branch 2 also promotes the purpose of FIPPA to provide transparency of government functioning “with exceptions where the interests of public knowledge are overbalanced by other concerns” (see Big Canoe (C.A.) above). To interpret Branch 2 in this manner recognizes that in the case of records prepared by or for Crown counsel for use in any aspect of litigation, the interests of the public in transparency are trumped by a more compelling public interest in encouraging the settlement of litigation.

The Court’s protective outlook is very atypical and will certainly be of great concern to the IPC and open government advocates. There’s also some dicta in the decision that reveals a significant subtext.

What flows from the IPC’s view of the law regarding settlement negotiations? First, the details of negotiations and settlement of any dispute between a government institution and a third party will be available to the world at large, following a request. Apparently, a Requester need but ask anonymously and the IPC will undertake the heavy lifting, as in this case. There is a delicious irony in this matter, whereby the IPC, in the name of transparency, labours for an anonymous Requester.

Ontario (Liquor Control Board) v. Magnotta Winery Corp., [2009] O.J. No. 2980 (Div. Ct.) (QL).