Legislation must clearly state intention to abrogate privilege: SCC

  • November 28, 2016

The Supreme Court of Canada upheld the importance of solicitor-client and litigation privilege respectively – and also on the need for clear legislative language surrounding privilege – in two rulings brought down on Nov. 25. The CBA had intervened in both cases.

In Alberta (Information and Privacy Commissioner) v University of Calgary, the issue was whether the Commissioner had the authority to order the production of documents over which the university had claimed privilege.

Calling privilege “a substantive right that is fundamental to the proper functioning of our legal system,” the majority ruled that the intention to abrogate solicitor-client privilege would have to be clearly set out in the legislation – something the Freedom of Information and Protection of Privacy Act does not do.

(G)iven its fundamental importance, one would expect that if the legislature had intended to set aside solicitor‑client privilege, it would have legislated safeguards to ensure that solicitor‑client privileged documents are not disclosed in a manner that compromises the substantive right or addressed whether disclosure of solicitor‑client privileged documents to the Commissioner constitutes a waiver of privilege with respect to any other person.

In its factum, the CBA argued that privilege is paramount.

Lawyers understand their obligation of disclosure and its importance to a functioning legal system. They are governed by their law societies and have sworn not to pervert the law to favour or prejudice anyone and to conduct themselves truly and with integrity in all things. To imply that lawyers are misunderstanding or purposely misrepresenting their clients’ rights is an affront to the justice system. To then say that a person must divulge information their lawyer considers to be privileged to the Commissioner and she might recognize the right to solicitor-client privilege after-the-fact is not reassuring.

Former CBA President Michele Hollins represented the CBA in this matter, along with James L. Lebo, Q.C., of McLennan Ross LLP and Jason Wilkins, of Dunphy Best Blocksom LLP.

In Lizotte v Aviva Insurance Co. of Canada, the issue was whether legislation can abrogate litigation privilege by inference. As stated in the CBA’s factum, can a regulator rely on general , open-textured statutory language to pry into a lawyer’s brief – to examine the lawyer’s litigation strategy, trial preparation  and all other communications made and information assembled for the dominant purpose of pending or apprehended litigation? Or instead should the Court affirm for litigation privilege what it has already affirmed for solicitor-client privilege: that “[e]xpress words are necessary to permit a regulator or other statutory official to ‘pierce’ the privilege”?

The CBA’s argument, presented by Mahmud Jamal, Alexandre Fallon and W. David Rankin of Osler, Hoskin & Harcourt LLP, was that it litigation privilege cannot be abrogated by inference, and the Supreme Court agreed.

After reiterating that solicitor-client privilege and litigation privilege are distinct – the former is permanent and meant to protect a relationship; the latter temporary and in place to “ensure the efficacy of the adversarial process” – the court ruled that litigation privilege “is nevertheless a class privilege and gives rise to a presumption of inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation.”

In this case, the insurer claimed its documents were privileged and the court agreed that it had the right to do so.

There is a robust line of authority according to which a party should not be denied the right to claim litigation privilege without clear and explicit legislative language to that effect. It was the fundamental importance of that privilege that led the Court to require explicit language for its abrogation. There is no question that litigation privilege does not have the same status as solicitor‑client privilege, and it is less absolute than the latter. Nonetheless, like solicitor‑client privilege, litigation privilege is fundamental to the proper functioning of our legal system and is central to the adversarial system that Quebec shares with the other provinces.

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