Last December 16th, the Nova Scotia Supreme Court held 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 had little trouble finding an intention to waive, noting that the only remaining concern of the Department was over releasing a letter that embodied the opinion and not the opinion itself. More interesting is the Court’s rejection of the Department argument that waiver of privilege held by the provincial crown must be waived by the executive branch. It held that the authority to waive privilege in an opinion prepared for the crown is at least coextensive with the authority to acquire an such an opinion.
In the current edition of Canadian Lawyer magazine the requester’s council says, “I think this decision is the first time that a court has stated that a civil servant can waive privilege over legal advice received within his authority.”
Peach v. Nova Scotia (Transportation and Infrastructure Renewal), 2010 NSSC 91.
In a leave to appeal application decided on December 4th, Smith J. of the British Columbia Court of Appeal rejected an argument that proportionality is not part of the test for implicit waiver of solicitor-client privilege.
The respondent was 15 days late in complying with a court order to serve an affidavit. The applicant brought on contempt proceedings based on the respondent’s pattern of conduct. As part of its defence, the respondent addressed the 15 day delay by claiming his solicitor did not make him aware of the deadline until too late. He served a second affidavit along with an e-mail from his counsel as evidence.
The applicant unsuccessfully applied for production of other related communications between the respondent and his counsel. The applications judge held that the 15 day delay was not central to the contempt proceeding so an order for production would not be “proportional.”
Smith J. held that the applications judge did not err by applying an inappropriate test for waiver. She held that “proportionality” was concept that is consistent with the fairness aspect of the test for waiver by implication – a rule by which privilege will be waived in communications related to those in which there is an intention to waive privilege where fairness and consistency demand a broader waiver. According to Smith J., “Fairness dictates that requests for access to non-material information do not satisfy the waiver test.”
Hub International Limited v. Tolsma, 2008 BCCA 500.