The scope of solicitor-client privilege, advice versus information and Trillium Motor World

Here’s a handout for an internal (Hicks Morley) talk I’m doing tomorrow on solicitor-privilege, “the continuum of communications” concept and the Ontario Superior Court of Justice’s recent decision in Trillium Motor World.

In Trillium Motor World the Court held that legal information (versus advice) conveyed from a firm to its client was not privileged. In short, my conclusion is that the decision is an outlier driven by a unique context and that in more ordinary circumstances a court will not (and should not) parse the subject matter of communications related to an ongoing retainer so delicately.

Yesterday’s post on Justice Stratas’s recent Canada (Public Safety and Emergency Preparedness) decision is another good one to read on this topic.

Case Report – Publication of teaching evaluation data lawful

Arbitrator Brent held that the University of Windsor did not violate its faculty collective agreement or the Ontario Freedom of Information and Protection of Privacy Act by publishing teaching evaluation scores on a secure network for access by students and other members of the university community.

She made three findings. First, she held that the change in practice did not breach a frozen practices provision in the collective agreement because the publication condition (freedom from publication, as was argued) was not fundamental to the employment relationship. Second, she held that the express collective agreement restriction on disclosure of faculty personal information did not apply because the information disclosed was not “personal information” under the collective agreement. In reaching this finding, she relied on permissive collective agreement language that referred to the use of teacher evaluation data to construe the term “personal information.” Finally, she held that FIPPA did not apply based on its employment-related records exclusion and the fact that the data was used in the University’s promotion, tenure and renewal process. In rejecting the Association’s argument that student use of the data brought the records under the auspices of the Act, she said:

To argue that it ceases to become a “labour relations” or “employment-related” matter once it is made available to the students would in my view have the effect of excluding SET from FIPPA when it is used for employment related purposes but then including it when it is used to provide information to students. Such a result would be contrary to the Court of Appeal’s decision that once it is determined that FIPPA does not apply to certain material, then that material is exempt from FIPPA for ever.

University of Windsor and University of Windsor Faculty Association (Re) (19 February 2007, Brent).