On October 8th, the Ontario Labour Relations Board affirmed an order requiring a party to attend at a hearing along with all arguably relevant records that it claimed to be subject to solicitor-client privilege.  

The Board made its order in its joint hearing of two construction industry contracting out grievances.  The responding employer had failed to disclose or produce records customarily produced in such grievances (e.g. contracts, bid documents and payroll records). Instead, it produced a few records and claimed “all other records in our client’s possession are privileged.”  The impugned order became necessary after the employer twice resisted Board orders to specifically identify the records it claimed were privileged.

The Board rejected the employer’s argument it lacked jurisdiction to order the production of documents over which a claim of solicitor-client privilege has been made.  It distinguished the Supreme Court of Canada’s recent Blood Tribe decision by explaining that it was not about an adjudicative body’s power to control its hearing procedure.

The difficulty with the argument made by the responding party is reflected by the passage above.  The Privacy Commissioner is not an adjudicator, but an investigator.  It would be problematic if an investigator had the authority to compel disclosure of documents that are subject to a solicitor-client privilege, because there is the possibility that the documents or their contents could be used by the investigator against the party claiming the privilege.  In fact, the Court in Blood Tribe Department of Health specifically notes that a major distinction between the Privacy Commissioner and a court is that in pursuit of her mandate the Privacy Commissioner may become adverse in interest to the party whose documents she wants to access.  

The circumstances are entirely different before the Board.  The Board is not an investigator, and is not and will not become adverse in interest to the responding party.  Although the Board is not a court of law, it is a quasi-judicial statutory tribunal that is responsible for determining all questions of fact or law that arise in any hearing before it, including grievance referrals filed with it pursuant to section 133 of the Act.  

In these two proceedings filed with the Board, one of the questions that has risen before the Board is whether the documents that the responding party asserts are covered by solicitor-client privilege are, in fact, covered by that privilege.  The Board is responsible for verifying claims of privilege to ensure the integrity and proper functioning of its processes, including grievance referrals under section 133 of the Act.  If all of the documentation asserted by the responding party to be covered by solicitor-client privilege is, in fact, covered by a legitimate solicitor-client privilege, the applicant will not be entitled to production of the documentation.  However, the determination as to whether the documentation is covered by a legitimate solicitor-client privilege is for the Board to make at first instance.

Re Proplus Construction & Renovation Inc. (8 October 2008, O.L.R.B.).

I attended a very good dinner panel tonight on the Supreme Court of Canada’s Blood Tribe decision. The panelists were excellent, but my best take-away was moderator Priscilla Platt’s heads-up on the Alberta OPIC’s recently-issued Solicitor-Client Privilege Adjudication Protocol.

The Protocol is a leading attempt at addressing how an access to information adjudicator ought to exercise a discretion to order production of records claimed to be subject to solicitor-client privilege.  It states:

… the Commissioner does not routinely compel production of information over which solicitor-client privilege is claimed; rather, he does so only on a case-by-case basis, when the party claiming the privilege fails to present adequate evidence of it and/or when opposing, persuasive evidence or argument has been presented to him that, in either circumstance, necessitates production in order for him to fairly decide the issue.  Importantly, the Commissioner only compels production to the extent absolutely necessary in exceptional cases. 

There is little question that the Alberta FIPPA gives the OPIC the power to compel records claimed to be privileged.  Furthermore, one of the Act’s express purposes is to “provide for independent reviews of [access to information] decisions made by public bodies.” It nonetheless appears the OPIC has heeded to the tenor of the developing solicitor-client privilege jurisprudence by committing to a Protocol that will apply to all access requests that it adjudicates, including those under FIPPA.

Not surprisingly, the Protocol does require claimants to provide evidence to support a privilege claim on a record-by-record basis, preferably by way of a sworn affidavit.  In this regard, it includes a (fair, in my view) “record form” to help claimants particularize the facts raised in support of a claim.

It remains to be seen whether access to information adjudicators in other jurisdictions will adopt a similar approach.

In this June 26th Ontario Superior Court decision, the Court allowed a motion to suppress e-mails containing privileged communications that were filed by a former spouse after she received them from her former husband’s girlfriend.

After rejecting an argument that the e-mail communications were subject to the criminal intent exception to solicitor-client privilege, the Court went into detail on the waiver argument. Although there was a sharp factual dispute about how the e-mails were leaked, the Court held that the respondent’s best case – that the applicant had his girlfriend type e-mails to his lawyer and left such e-mails around the home – would not be grounds for waiver in the circumstances.

The Court stressed that waiver is a question of intent, and held that the applicant had a reasonable expectation of confidence that was breached by his girlfriend (i.e. he was not reckless to ask a friend for administrative help nor was he reckless to leave documents around a private home). The Court also stressed that the test for waiver requires a balancing of interests and that a court must assess all factors, including the “threshold relevance” of the impugned evidence, before allowing it to be admitted despite a valid privilege claim. In the circumstances therefore, the Court’s finding that the leaked e-mails had little probative value weighed in favour of its decision that they ought to be suppressed.

Though the decision is fact-specific, the Court goes on to make a rather principled statement about electronic documents and how they are hard to control, suggesting that protecting solicitor-client privilege requires a more forgiving application of the waiver doctrine.

Hat tip to Jennifer Normandin of Goldhart & Associates, who wrote a great and more complete summary of this case in this week’s Lawyers Weekly.

Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ON. S.C.).

On July 24th, the New Brunswick Court of Appeal affirmed an order that allowed counsel who received and read privileged communications to continue to act and affirmed the part of the order that stated that counsel was not precluded from establishing the facts underlying the privileged communications.

The defendants claimed that various written statements from a witness for an adjusting firm retained by legal counsel were subject to solicitor-client privilege after they were inadvertently disclosed to the plaintiff along with a draft affidavit of documents several days before examinations for discovery. The plaintiff had thoroughly reviewed and made notes of the written communications in question by the time its counsel showed up at the discovery and was told what he had read was privileged. The plaintiff eventually destroyed the written communications, though it kept its notes and made the point that its actions were taken without prejudice to its right use information contained in the communications now destroyed.

The defendants filed a motion to disqualify the plaintiff’s counsel, but only succeeded in obtaining a protective order that required the destruction of documents and notes and prohibited use of documents. The order also specifically stated that the plaintiff was not precluded from establishing the facts underlying the privileged communications. The defendants appealed, and the third-party defendants who had not participated in the motion for fear of gaining knowledge of privileged communications filed a cross-appeal, arguing that they were now at a relative disadvantage and deserved access to the facts underpinning the privileged communications.

In dismissing the appeal and cross-appeal, the Court of Appeal stressed that solicitor-client privilege only protects communications and not underlying facts. It said:

At the end of the day, one is driven to conclude that the inadvertent production of the Documents probably operated to do no more than this: it acquainted Canada Post and Cox & Palmer with information they would have acquired, sooner or later, as the litigation unfolded. The law would be in a sad state if accelerated acquaintance with non-privileged information, in circumstances such as those that avail here, sufficed to bring about the principled removal of a solicitor of record.

Though this statement may be valid on its own, the judgement was heavily swayed by the Court’s scepticism about the privilege claim. It did not review the impugned communications (nor did the motions judge), said the motions judge’s assumption that the communications were privileged was “questionable” and that, in any event, the documents were likely “fact-focussed.”

Euclide Cormier Plumbing and Heating Inc. v. Canada Post Corporation, 2008 NBCA 54 (CanLII).

On August 26th, the Prince Edward Island Court of Appeal issued a principled judgement on the scope of litigation privilege as it stands against the production and discovery requirements in the Nova Scotia civil rules.  

Rule 31.06 in the Prince Edward Island Rules of Court governs oral discovery and requires a person who is examined to answer “any proper question relating to any matter in issue in the action.” The identical provision exists in the Ontario Rules, where it has been interpreted to override litigation privilege subject to provision’s own express limitations.  The PEI Court of Appeal explained:

The Ontario courts give a plain meaning to Rule 31.06 and a meaning that can be reconciled with Rule 30 which permits a claim for privilege over a document itself. Rule 31.06 means that information relevant to matters in issue must be disclosed in oral discovery, and to this extent the right of litigation privilege has been abrogated.  Documents remain protected from disclosure but the evidence in a particular document which is relevant to the proof of the facts in the matter must be disclosed in accordance with Rule 31.06.  The opinions obtained by a party from an expert and which the party may find unfavourable to its position continue to be protected by litigation privilege upon the undertaking from the party that the opinion will not be relied upon at trial.

It endorsed this approach and rejected the contrary position taken by the Manitoba Court of Appeal, which has held that the Ontario (and now Prince Edward Island) view may “fatally main the litigation privilege rule.”

Llewellyn v. Carter, 2008 PESCAD 12.

On August 1, the Supreme Court of Nova Scotia granted a motion for the production of a information relating to a “private client” of an expert because the expert said that she used the information to support the reasonableness of an assumption. Though the expert attempted to discount the significance of the private client’s information to her opinion, the Court held that it must be produced as an essential fact upon which her opinion was based. It also rejected an argument that a case-by-case/”Wigmore” privilege applied.

South West Shore Development Authority v. Ocean Produce International Ltd., 2008 NSSC 240.