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Evidence - Privilege - Solicitor-Client (5). Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada
In Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada (Ont CA, 2024) the Court of Appeal considered an insurer appeal of a complex interlocutory application to declare 'duties to defend' and if so, the allocation of legal expenses between defendants, in five merged opioid class actions against several retailers, each with multiple insurers.
Here the court addresses solicitor-client privilege:[269] The Supreme Court addressed the importance of solicitor-client privilege in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 26 and 82:The importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilege concerned with the protection of a relationship that has a central importance to the legal system as a whole. In R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, Chief Justice Lamer described its rationale as follows:The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication. [Emphasis added; p. 289.] ...This Court has found that solicitor-client privilege is both an evidentiary privilege and a substantive principle. In Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, Arbour J. explained that “[s]olicitor-client privilege is a rule of evidence”: para. 49. Similarly, in Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456, the Court observed that the case law “establishes the fundamental importance of solicitor-client privilege as an evidentiary rule, a civil right of supreme importance and a principle of fundamental justice”: para. 34 (emphasis added). In Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, Lamer J. described solicitor-client privilege as a “rule of evidence”, which “had also since given rise to a substantive rule”: pp. 872 and 875. Solicitor-client privilege is thus both a rule of evidence and a substantive rule. [Emphasis in original.] [270] In Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, Gascon J. also stressed the importance of litigation privilege at para. 4:I would dismiss the appeal. Although there are differences between solicitor‑client privilege and litigation privilege, the latter is nonetheless a fundamental principle of the administration of justice that is central to the justice system both in Quebec and in the other provinces. It is a class privilege that exempts the communications and documents that fall within its scope from compulsory disclosure, except where one of the limited exceptions to non‑disclosure applies. . 1307839 Ontario Limited et. al. v. Klotz Associates et. al.
In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered solicitor-client privilege:Law regarding privilege
Solicitor-client privilege
[20] Solicitor-client privilege is fundamental to the Canadian legal system and has evolved over the years from a rule of evidence to a rule of substantive law: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 17; Descôteaux c. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, [1982] S.C.J. No. 43, at paras. 26-27.
[21] While solicitor-client privilege is not absolute, the Supreme Court of Canada has repeatedly held that it “must be as close to absolute as possible to ensure public confidence and retain relevance”: McClure, at para. 35; Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, [1999] S.C.J. No. 15; R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209; Ontario (Ministry of Correctional Services) v. Goodis, 2006 SCC 31, [2006] 2 S.C.R. 32.
[22] In determining whether a document for which privilege is claimed should be ordered disclosed, the appropriate test to be applied is “absolute necessity”: Goodis, at para. 24.
[23] Privilege may be waived expressly or impliedly. Implied waiver typically happens either by way of disclosure or reliance. Once a privileged document or legal advice has been disclosed, the privilege attaching to it is considered to be lost. If a party claiming privilege pleads or otherwise relies upon a privileged document or legal advice for the purpose of pursuing their position in a legal proceeding, then the privilege is considered lost. Waiver of privilege attaching to a solicitor-client communication will be implied where the communication is “legitimately brought into issue in an action”. Waiver of privilege attaching to legal advice will be implied where a party has put in issue its state of mind and that state of mind has been informed by legal advice received. In determining whether there has been an implied waiver of privilege, the court must balance the principles of fairness and consistency against the importance of solicitor-client privilege: Bank Leu AG v. Gaming Lottery Corp., 43 C.P.C. (4th) 73, at para. 5; McQueen et al. v. Mitchell et al., 2022 ONSC 649, at paras. 59-60; Laliberté, at para. 22.
[24] Once it has been established that a communication is subject to solicitor-client privilege, the party seeking to overcome the privilege bears the onus of establishing that the communication ought to be compelled from the party asserting the privilege: Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276, at para. 76.
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