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Evidence - Privilege - Solicitor-Client
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. Industrial Alliance Securities Inc. v. Kunicyn
In Industrial Alliance Securities Inc. v. Kunicyn (Div Ct, 2020) the Divisional Court considered the rare 'future crimes and fraud' exception to solicitor-client privilege:Solicitor-Client Privilege and Its Role in Our Legal System
[24] The Supreme Court of Canada has repeatedly emphasized the importance of solicitor-client privilege to our legal system. The privilege ensures that clients are represented effectively, and that legal information can be communicated fully and frankly (Blank v. Canada (Department of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at paras. 23-26). It has evolved from a rule of evidence to a privilege with constitutional dimensions, both as part of the principle of fundamental justice and as a part of client’s right to privacy. (Blank; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555). Solicitor-client privilege is a class privilege that will only yield in certain clearly defined circumstances, and not on the basis of a case-by-case balancing of interests (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445).
[25] In University of Calgary, the Supreme Court reemphasized that the privilege is one that is “jealously guarded and should only be set aside in the most unusual circumstances” and that “as a substantive rule, solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary”: at paras. 34 and 43.
The “Future Crimes and Fraud” Exception
[26] In Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at pp. 882-83, the Supreme Court explained that confidential communications lose their confidential character to the extent that those communications were made to obtain legal advice for the purpose of committing a crime or if the communication itself is the material element of the crime. Such communications are injurious to the administration of justice and do not fall into the “ordinary scope of professional employment.”
[27] This is what has become known as the “future crimes/fraud exception”. As described by the Supreme Court in Canada (Privacy Commissioner) v. Blood Tribe (Department of Health), 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 10, the exception is “extremely limited in nature”, which serves to emphasize rather than dilute the general rule that solicitor-client privilege is to remain “as close to absolute as possible to ensure public confidence and retain relevance.”
[28] The parties agree that to establish the exception the party relying on the exception has the onus of demonstrating:(a) That the challenged communications relate to proposed future conduct;
(b) The client must be seeking to advance conduct which they know or should know is unlawful; and
(c) The wrongful act being contemplated must be clearly wrong (see e.g. McDermott v. McDermott, 2013 BCSC 534, 46 B.C.L.R. (5th) 121, at para. 75; 1784049 Ontario Limited (Alpha Care Studio 45) v. Toronto (City), 2010 ONSC 1204, 101 O.R. (3d) 505, at para. 34). [29] In establishing these elements, the moving party is held to a prima facie case standard.
Does the Exception Extend to Civil Wrongs?
[30] In Dublin v. Montessori Jewish Day School of Toronto (2007), 2007 CanLII 8923 (ON SC), 85 O.R. (3d) 511, at paras. 30 and 39, Perell J. found that, although criminal proceedings may represent the “classic example” of the exception, there was “no reason why the exception should not include communications perpetrating tortious conduct that may become the subject of a civil proceeding.” Leave to appeal Perell J.’s decision was granted, but the appeal was never argued.
[31] In Geographic Resources Integrated Data Solutions Ltd. v. Peterson (2009), 2009 CanLII 15436 (ON SC), 74 C.P.C. (6th) 313 (Ont. S.C.), at para. 26, Master MacLeod (as he then was), although critical of the scope of the Dublin decision, found it to be “clear however that without going as far as the court went in Dublin, the fraud exception would encompass fraudulent conspiracy, trickery and sham contrivances.”
[32] In Zesta Engineering Ltd. v. Cloutier, [2008] O.J. No. 304, at paras. 113-114, Master J.M. Haberman, relying on Dublin and a decision of the British Columbia Supreme Court in Goldman, Sachs & Co. v. Sessions (1999), 38 C.P.C. (4th) 143, found that the exception applied to torts such as abuse of process, breach of regulatory statutes, breach of contract and other breaches of duty.
[33] In Hallstone Products Ltd. (2004), 1 C.P.C. (6th) 324 (Ont. S.C.), at paras. 10 and 15, Master Dash found that the fraud exception is “not to be narrowly construed” and “includes all forms of dishonesty”, in particular, “properly supported claims of criminal process, deliberate suppression of evidence and malicious prosecution for an improper purpose.”
[34] Ms. Kunicyn relies on Huang v. Silvercorp Metals Inc, 2017 BCSC 795, a decision of the British Columbia Supreme Court, for the proposition that the civil wrong of procuring an inappropriate investigation by a regulator could ground a claim under the exception. In that case, the moving party, Huang, alleged that Silvercorp committed the tort of false imprisonment by conspiring with the Chinese authorities to have him imprisoned there. The motion for production by Huang was successful because the motion judge found that Silvercorp had not established that the documents sought by Huang were presumptively privileged and there was an implied waiver of privilege between Silvercorp, its lawyers and the Chinese authorities. However, the motion judge also found that the crime/fraud exception would apply in the case before him because the “wrongful conduct in issue is the tort of false imprisonment, which is akin to fraud in terms of moral culpability”: at para. 179.
[35] In Brome Financial v. Bank of Montreal, 2013 ONSC 4816, D.M. Brown J. (as he then was) stated:[19] In light of the near-absolute protection accorded to solicitor-client privilege in the Supreme Court of Canada jurisprudence and the narrow ambit that court gave to the “future crime and fraud” exception in its ratio in the R. v. Campbell case, I am not prepared to follow the path walked by the court in Goldman, Sachs and Dublin cases. The extensions made in those cases to the “future crime and fraud” exception seemed to go beyond the core principles concerning that exception as set out in the R. v. Campbell case. [36] The information sought in Brome Financial concerned communications between Brome and Brome’s counsel for the alleged purpose of breaching the deemed undertaking rule. Brown J. found that the “deemed undertaking rule is a most important one in the civil litigation process”, but that it did not “come anywhere close to the narrow cohort of ‘future crime and fraud’ misconduct in respect of which communications between a client and its lawyer would not enjoy the protection of solicitor-client privilege”: at paras. 20-21. In making this ruling, Brown J. observed that a breach of the deemed undertaking rule does not attract any penal sanctions, and that the moving party had not demonstrated that it was necessary within the meaning of the case law to interfere with solicitor-client privilege.
[37] In Whitty v. Wells, 2016 ONSC 7716, Myers J. commented on the fraud/crime exception, and relying on Blood Tribe, found that the exception did not apply to any unlawful activity. “Any breach of contract or tort can be said to be unlawful. The exception is much narrower, ‘extremely limited’ says the Court [in Blood Tribe], so that privilege is lost only for conversations that are ‘criminal in themselves or intended to further criminal purposes’”: at para. 31.
[38] This narrower approach to the exception was adopted by the Federal Court of Appeal in Blank v. Canada (Justice), 2016 FCA 189, 7 Admin L.R. (6th) 30. In Blank, the moving party and his company were charged summarily with 13 violations under the Fisheries Act, R.S.C. 1985, c. F-14. Eight of the charges were quashed and the remaining five were ultimately stayed by the Crown. The appellant sued alleging abuse of process. During the lawsuit, the appellant sought production of any correspondence to or from one of the prosecutors who prosecuted them. The Federal Court of Appeal found that the documents were protected by solicitor-client privilege and that the federal court jurisprudence is clear – following the Supreme Court’s decision in Blood Tribe, “blameworthy conduct or abuse of process is not sufficient to lift solicitor-client privilege”: at para. 60. . R v Ward
In R v Ward (Ont CA, 2016) the Court of Appeal, in a criminal appeal, usefully canvasses the elements for the establishment of solicitor-client privilege over communications, and the standard required for waiver of that privilege (here there was inadvertent disclosure to the other side):[31] Communications between a lawyer and his or her client are privileged where they involve the giving or seeking of legal advice and where the parties intend them to be confidential: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 837. The client, not the lawyer, holds the privilege and only he or she can waive it: R. v. McClure, 2001 SCC 14 (CanLII), [2001] 1 S.C.R. 445, at para. 37.
[32] Where solicitor-client privilege has not been waived, the court may also consider whether privilege should yield in order to allow an accused to make full answer and defence: R. v. Brown, 2002 SCC 32 (CanLII), [2002] 2 S.C.R. 185, at paras. 5, 28, 45. However, solicitor-client privilege is almost absolute, and may be set aside only in very rare circumstances: McClure, at paras. 5, 35. As the Supreme Court stated in McClure, at para. 35: “[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.”
[33] Here, the content of the letter and the context make it clear that trial counsel sent the letter to his own counsel in the course of seeking advice about how to respond to appeal counsel’s requests and how to comply with this court’s Protocol. I infer from this same content and context that trial counsel intended the communication to be confidential. Trial counsel is no less entitled to the benefit of solicitor-client privilege because he was attempting to comply with the Protocol.
[34] The appellant concedes that the disclosure to appeal counsel was inadvertent, and that trial counsel did not waive solicitor-client privilege. This was an appropriate concession.
[35] Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:. The way in which the documents came to be released;
• Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
• The timing of the discovery of the disclosure;
• The timing of the application;
• The number and nature of the third parties who have become aware of the documents;
• Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and
• The impact on the fairness, both actual or perceived, of the processes of the court. See Airst v. Airst (1998), 1998 CanLII 14647 (ON SC), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and Chapelstone Developments Inc. v. Canada, 2005 NBCA 96 (CanLII), 191 C.C.C. (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.
[36] Having considered the above factors, I conclude that solicitor-client privilege was not waived in this case.
[37] Nor should it be set aside. In McClure, the Supreme Court held that solicitor-client privilege may only be set aside very rarely, “where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction”: para. 47. Under the innocence at stake test, the accused must first establish that the information sought from the solicitor-client communication is not available from any other source and that he or she is unable to raise a reasonable doubt as to guilt in any other way. If that threshold question is satisfied, the court will then consider whether there is an evidentiary basis upon which to conclude that a communication exists that could raise a reasonable doubt as to the accused’s guilt, and if so, whether the communication is likely to raise a reasonable doubt. See McClure, at paras. 46-51; and Brown, at paras. 4, 29.
[38] There is no basis to abrogate the solicitor-client privilege here. Innocence is not at stake. The contents of the Letter are marginally relevant to the ineffective assistance of counsel claim, if pursued. The panel ultimately hearing the appeal will be able to come to its own opinion as to possible inferences a jury could have drawn from the evidence led at trial. . Alberta (Information and Privacy Commissioner) v. University of Calgary
In Alberta (Information and Privacy Commissioner) v. University of Calgary (SCC, 2016), a freedom of information case, the Supreme Court of Canada canvasses the nature of solicitor-client privilege, and in particular that it is more than just a principle of the law of evidence:[38] First, it is well established that solicitor-client privilege has evolved from a rule of evidence to a rule of substance (Blood Tribe, at para. 10; Thompson, at para. 17; Chambre des notaires, at para. 28). Further, as indicated above, some even suggest that the Court has granted it a quasi-constitutional status.
[39] Formerly, solicitor-client privilege as a rule of evidence meant that a client and his or her lawyer were not required to tender confidential communications into evidence in a judicial proceeding (Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at p. 876, citing R. Cross, Cross on Evidence (5th ed., 1979), at p. 282). As R. D. Manes and M. P. Silver state in Solicitor-Client Privilege in Canadian Law (1993), at p. 2:The origin of the law of privilege goes back to Tudor times in England, and originated as a respect for the oath and honour of a lawyer who was duty-bound to guard the client’s secrets. At first, the duty was restricted to an exemption only from testimonial compulsion, that is, the right of the lawyer or client to refuse to testify in court regarding confidential communications. [Emphasis added; footnote omitted.] In its early days, solicitor-client privilege was restricted in operation to an exemption from testimonial compulsion (Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 834).
[40] As early as Solosky, however, this Court recognized that solicitor-client privilege had been placed “on a new plane”, and extended beyond the courtroom context (p. 836). Two years later, in Descôteaux, this Court elaborated on solicitor-client privilege as a substantive rule and formulated it as follows:1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.
2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively. [p. 875] Thus, the substantive rule expanded the circumstances in which solicitor-client privilege applies, and also introduced protections governing when the privilege can be abrogated, set aside or infringed.
[41] Following Descôteaux, this Court has found solicitor-client privilege to apply in circumstances outside the courtroom, including search and seizure of documents in a lawyer’s office (Lavallee; Maranda v. Richer, 2003 SCC 67 (CanLII), [2003] 3 S.C.R. 193; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 (CanLII), [2015] 1 S.C.R. 401) and disclosure of documents in the context of access to information legislation (Blood Tribe; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 S.C.R. 32; Criminal Lawyers’ Association). In its modern form, solicitor-client privilege is not merely a rule of evidence; it is “a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law” (Lavallee, at para. 49).
[42] I find that the present case engages solicitor-client privilege in its substantive, rather than evidentiary, context. This case is not occupied with the tendering of privileged materials as evidence in a judicial proceeding. Rather, it deals with disclosure of documents pursuant to a statutorily established access to information regime, separate from a legal proceeding. While it is true that the person who applied for the information was initially seeking the information for use as evidence in separate litigation against the University, her lawsuit has since ended. In addition, the Privacy Commissioner is not seeking to review the solicitor-client privileged information as evidence in order to decide a legal dispute. The disclosure of the information in this context is therefore not related to the “evidentiary privilege”. Rather, disclosure in this case is more akin to the review of mail being delivered to prison inmates, which this Court addressed in Solosky. In that case, as it was described in Descôteaux, the Court “applied a standard that has nothing to do with the rule of evidence . . . since there was never any question of testimony before a tribunal or court” (p. 875). Equally, the absence of such a question here highlights the engagement of solicitor-client privilege in its substantive, rather than evidentiary, role.
[43] This Court has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary (Chambre des notaires, at para. 28, citing Lavallee, at paras. 36-37, McClure, at para. 35, R. v. Brown, 2002 SCC 32 (CanLII), [2002] 2 S.C.R. 185, at para. 27, and Goodis, at para. 15). Within the evidentiary context of criminal proceedings, for example, the substantive nature of solicitor-client privilege has been interpreted as meaning the privilege only yields in “certain clearly defined circumstances, and does not involve a balance of interests on a case-by-case basis” (McClure, at para. 35). These limited categories, which will only be satisfied in rare circumstances, include the accused’s right to make full answer and defence (McClure; Brown) and where public safety is at stake (Smith). . Canada (National Revenue) v. Thompson
In Canada (National Revenue) v. Thompson (SCC, 2016) the Supreme Court of Canada briefly reviews the nature of solicitor-client privilege:[17] Solicitor-client privilege has evolved from being treated as a mere evidentiary rule to being considered a rule of substance and, now, a principle of fundamental justice (Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18 (CanLII), [2004] 1 S.C.R. 456, at para. 34; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 (CanLII), [2002] 3 S.C.R. 209, at para. 49; Maranda v. Richer, 2003 SCC 67 (CanLII), [2003] 3 S.C.R. 193, at para. 11; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 839; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at p. 875; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 (CanLII), [2015] 1 S.C.R. 401, at paras. 8 and 84). The obligation of confidentiality that springs from the right to solicitor-client privilege is necessary for the preservation of a lawyer-client relationship that is based on trust, which in turn isindispensable to the continued existence and effective operation of Canada’s legal system. It ensures that clients are represented effectively and that the legal information required for that purpose can be communicated in a full and frank manner (R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 289 . . .).
(Foster Wheeler, at para. 34) [18] In Descôteaux, one of the earliest cases in which this Court acknowledged that solicitor-client privilege involves a substantive right, Lamer J., as he then was, elaborated on the various aspects of the privilege as follows:1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.
2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively. [p. 875] The third and fourth elements of this substantive rule have together been interpreted to support the proposition that an intrusion on solicitor-client privilege must be permitted only if doing so is absolutely necessary to achieve the ends of the enabling legislation (Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 S.C.R. 32, at para. 24).
[19] Although Descôteaux appears to limit the protection of the privilege to communications between lawyers and their clients, this Court has since rejected a category-based approach to solicitor-client privilege that distinguishes between a fact and a communication for the purpose of establishing what is covered by the privilege (Maranda, at para. 30). While it is true that not everything that happens in a solicitor-client relationship will be a privileged communication, facts connected with that relationship (such as the bills of account at issue in Maranda) must be presumed to be privileged absent evidence to the contrary (Maranda, at paras. 33-34; see also Foster Wheeler, at para. 42). This rule applies regardless of the context in which it is invoked (Foster Wheeler, at para. 34; R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 289). . Blank v. Canada (Minister of Justice)
In Blank v. Canada (Minister of Justice) (SCC, 2006) the Supreme Court of Canada commented on the history of solicitor-client privilege:24 Thus, the Court explained in Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, and has since then reiterated, that the solicitor-client privilege has over the years evolved from a rule of evidence to a rule of substantive law. And the Court has consistently emphasized the breadth and primacy of the solicitor-client privilege: see, for example, Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; and Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31. In an oft-quoted passage, Major J., speaking for the Court, stated in McClure that “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance” (para. 35). . R v Olusoga
In R. v. Olusoga (Ont CA, 2019) the Court of Appeal held that an inadvertent breach of solicitor-client privilege during a criminal trial, where the breach was used in evidence again the defendant (though not material), created an appearance of unfairness and could not stand as it was a miscarriage of justice:[15] The proper functioning of the adversarial system depends on the assurance, given to every accused, that communications with their lawyer for the purpose of receiving legal advice are, subject to certain exceptions, privileged. Individuals facing criminal charges must be free to discuss their case openly with their lawyer, so that their lawyer can help them navigate the system and give them competent legal advice: see R. v. McClure, 2001 SCC 14 (CanLII), [2001] 1 S.C.R. 445, at para. 33; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII), [2008] 2 S.C.R. 574, at para. 9; Adam M. Dodek, Solicitor-Client Privilege (Markham, ON: LexisNexis Canada Inc., 2014), at pp. 7-9. This assurance would be undermined if information improperly disclosed to the trier of fact in breach of solicitor-client privilege could be used by the trier of fact to support a conviction.
[16] That is precisely what happened in this case. Regardless of whether it was “determinative” in finding the appellant guilty, the trial judge’s use of the information disclosed to him in breach of solicitor-client privilege created an appearance of unfairness that rises to the level of a miscarriage of justice. The appearance of unfairness in this case requires that the appeal be allowed, the convictions set aside, and a new trial ordered. In these circumstances, the proviso in s. 686(1)(b)(iii) of the Criminal Code does not apply: see R. v. Khan, 2001 SCC 86 (CanLII), [2001] 3 S.C.R. 823, at paras. 25-27; R. v. Bains, 2015 ONCA 677 (CanLII), 127 O.R. (3d) 545, at para. 88.
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