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Evidence - Privilege - Solicitor-Client (5). Ontario Civilian Police Commission v. Moreira
In Ontario Civilian Police Commission v. Moreira (Div Court, 2024) the Divisional Court ordered a summons against a police force, with the force partially-resisting on solicitor-client privilege grounds. This issue was to be decided under Public Inquiry Act procedures:[2] The Commission brought a stated case to the Divisional Court under s. 33(5) of the Public Inquiries Act for a determination whether the DRPS has a lawful excuse for not producing the withheld emails.
[3] The parties agree the only issue for me to decide is whether the emails are privileged.
[4] Solicitor-client privilege is essential to the proper functioning of our legal system and must remain as close to absolute as possible: Lavallee, Rackel & Heiz v. Canada (Attorney General), 2002 SCC 61 at para. 36. It covers all communications between a lawyer and client related to giving or receiving legal advice: Solosky v. Canada, 1979 CanLII 9 (SCC), [1980] 1 SCR 821 at 838. Solicitor-client privilege attaches to the facts communicated by the client and the lawyer’s work product, both of which could reveal the basis for the lawyer’s advice: R. v. Blank, 2006 SCC 39 at para. 49, Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 at paras. 39 to 40. It even attaches to information of an administrative nature that is related to obtaining legal advice: Descouteaux v. Mierzwinksi, [1982] 1 SCR at 893. Solicitor-client privilege does not attach to communications: (a) in which legal advice is not sought or offered; (b) that were not intended to be confidential; or (c) that were made in furtherance of an illegal purpose: Solosky, at p. 835.
[5] As the party asserting the privilege claim, the onus is on the DRPS to establish the emails fall within the scope of solicitor-client privilege.
[6] The Commission argues DRPS has made a blanket claim of privilege and has not adduced sufficient evidence to establish the privilege applies to the emails in question. I appreciate the Commission’s frustration with the evidence presented by DRPS. The affidavit of Chief Moreira simply states the emails are “between the Service and its lawyers” and “are within the framework of the lawyer-client relationship.” No details are provided about the emails.
[7] Counsel for the DRPS argues that no information could be provided about the emails without compromising the privilege or risking a claim that the DRPS has waived the privilege.
[8] I agree with the Commission that it would have been preferrable for DRPS to provide some information about the emails, such as the number of emails, who the emails were between and perhaps the date on which the emails were exchanged. Having said that, the parties agreed that the Respondent could file the emails over which the DRPS claims privilege as part of the record on this stated case.
[9] Based on my review of the emails, I am satisfied they are all protected by solicitor-client privilege. They all involve communications between senior members of the DRPS and counsel to the DRPS related to the provision of legal advice. They are not emails between senior members of the DRPS that were also copied to counsel. This is not a case where a party is trying to improperly hide communications that would otherwise be producible behind the cloak of solicitor-client privilege merely because they were sent to counsel: Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4, Nova Chemicals et al. v. CEDA-Reactor Ltd. et al., 2014 ONSC 3995. The emails all involve one or more of the people named in the summons. They also involve counsel for the DRPS. And they all relate to the provision of legal advice to the DRPS.
[10] I, therefore, find the emails are protected by solicitor-client privilege and the DRPS is justified in withholding them. . LifeLabs LP v. Information and Privacy Commr. (Ontario)
In LifeLabs LP v. Information and Privacy Commr. (Ontario) (Div Court, 2024) the Divisional Court dismisses a JR from an Ontario Privacy Commissioner's interlocutory order during an investigation which ruled against the applicant's privilege claims.
At paras 62-96, the court examines and rules against a range of solicitor-client and litigation privilege claims. In my view these paras contain examples of colourable arguments, targeted at avoiding public disclosure of potentially applicant-harmful evidence for use in collateral litigation.
. 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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