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Evidence - Privilege - Solicitor-Client (3)

. Caledon (Town) v. Darzi Holdings Ltd.

In Caledon (Town) v. Darzi Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered the interaction between breach of the Rules of Professional Conduct and the evidentiary admissibility of solicitor file materials:
[13] The decision of this court in Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), remains the controlling authority on the issue. In his dissent, Borins J.A. stated, at para. 198:
The Law Society passed the Rules of Professional Conduct to ensure that its members maintain the highest standards of professional conduct. Where a member's contravention of a rule is brought to the attention of the Law Society, it may result in the commencement of a disciplinary proceeding against the member. However, the Rules of Professional Conduct do not, and could not, affect the admissibility of relevant evidence in civil or criminal proceedings. Thus, even if it could be said that counsel for ALS contravened rule 4.03(2), this would not affect the admissibility of relevant evidence acquired by the investigator. [Emphasis added]
[14] The majority of the panel agreed, at para. 94, with Borins J.A. on this point.

[15] Although a breach of the Rules of Professional Conduct cannot determine the admissibility of evidence in a civil proceeding, a court may take such a breach into account as part of the exercise of its inherent jurisdiction to control its own process: see, e.g., Gagnon v. Pritchard (2002), 2002 CanLII 49419 (ON SC), 58 O.R. (3d) 557 (S.C.), at paras. 55-56; Dumais v. Zarnett (1996), 1996 CanLII 8205 (ON SC), 30 O.R. (3d) 431 (S.C.), at para. 49, in which courts refused to allow the use of transcripts of examinations for discovery conducted by unlicensed persons in breach of the Rules.
. Rak v. Ontario College of Pharmacists

In Rak v. Ontario College of Pharmacists (Div Court, 2022) the Divisional Court considered document redactions as a means of protecting solicitor-client privilege:
[41] We see no error by the Committee in admitting the redacted email. The Committee examined the redacted and unredacted versions of the email and concluded that there was no unfairness, as there was no cherry picking in the way in which the email was redacted to remove the privileged material. The Committee correctly held that the redacted email could be disclosed, thus protecting from disclosure only those parts of the email where Ms. Campbell sought legal advice (Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC) at paras. 118-120).

[42] The Committee made no error in finding that the College had not waived its solicitor and client privilege. This is not a case where the College put in issue its reliance on legal advice. The part of the email on which the College relied related to a conversation between Ms. Campbell and the appellant.
. McQueen et al. v. Mitchell et al.

In McQueen et al. v. Mitchell et al. (Div Ct, 2022) the Divisional Court considered whether a client waived solicitor-client privilege by suing their lawyer:
Did the appeal judge err in rejecting the Respondents’ argument that the Appellants waived privilege over their former lawyers’ file by commencing a solicitor’s negligence action against the former lawyers?

[74] The Respondents also submit that the Appellants’ solicitor’s negligence action against their former lawyers provides a second independent basis for waiver of privilege. I do not agree. That lawsuit was filed to protect the limitation period against their former lawyers and is in abeyance pending determination in the within action of whether the claims against the Respondents are statute-barred. The appeal judge correctly found that a lawyer is entitled to defend themselves using confidential information but shall not disclose more information than is required. The appeal judge correctly rejected the argument that by suing their former lawyers, the Appellants waived privilege over the entire file.
. McQueen et al. v. Mitchell et al.

In McQueen et al. v. Mitchell et al. (Div Ct, 2022) the Divisional Court considered an issue of implied waiver of solicitor-client privilege:
[56] In Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471, 90 B.C.L.R. (5th) 318, Harris J.A. explained the starting point for understanding the test for implied waiver at para. 50:
The starting point of an articulation of the test for implied waiver must recognize what the Supreme Court of Canada has made clear about the importance of solicitor-client privilege. In R. v. McClure, 2001 SCC 14 (S.C.C.) at para. 35, the Court said that solicitor-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” (emphasis added). Furthermore, the Court said (at para. 17) that solicitor-client privilege “is part of and fundamental to the Canadian legal system. ... [I]t has evolved into a fundamental and substantive rule of law.” This view was affirmed in Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 at paras. 20‑21, where the Supreme Court of Canada made clear that communications protected by privilege should be disclosed only where “absolutely necessary”, applying “as restrictive a test as may be formulated short of an absolute prohibition in every case.” [Underlining in original; italics added.]
[57] Caution must be exercised not “to treat implied waiver as ultimately a discretionary call about trial fairness.” The implication of waiver must be consistent with “the near absolute protection of solicitor-client privilege mandated by the Supreme Court”: H.M.B. Holdings Limited v. Replay Resorts Inc., 2018 BCCA 263, 11 B.C.L.R. (6th) 365, quoting Soprema Inc., at para. 51.

[58] Solicitor-client privilege is a fundamental civil and legal right belonging to the client. Any attempt to interfere with this special privilege should be limited to what is absolutely necessary in order to achieve the ends sought by the interference. This is a foundational principle of law that has been repeatedly endorsed by the Supreme Court of Canada: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at para 34; Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at para 27.

[59] Solicitor-client privilege can be implicitly waived by a client “where the voluntary conduct of that person indicates an implied or objective intention to waive it” (emphasis in original) though it will only yield in the clearest of cases, and does not involve a balancing of interests: Oliva et al. v. Dickson et al., 2019 ONSC 173, at para. 17. Consideration must be given to the “near absolute protection” over the privilege mandated by the Supreme Court of Canada: Oliva, at para. 20.

[60] Courts have held that implied waiver is limited to circumstances where all of the following requirements are met:
(a) The relevance of the privileged evidence is high;

(b) The principles of fairness and consistency require disclosure;

(c) The party’s state of mind is in issue and the party has given evidence that they received legal advice which played a part in forming that state of mind: Roynat Capital Inc. et al. v. Repeatseat Ltd. et al., 2015 ONSC 1108, at paras. 83-84; Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para 29.

The overarching test is whether fairness and consistency require disclosure with the other factors being things the court will consider when they are raised on the facts of the case.

[68] The Respondents submit that courts have found that “fairness and consistency” require production of otherwise privileged information including where a party:
(a) has partially disclosed the contents of a protected communication: KF Evans Ltd. v. Canada (Minister of Foreign Affairs), [1996] F.C.J. No. 30, at paras. 10-25; R. v. Basi, 2009 BCSC 777, at paras. 15-28;

(b) impugns legal advice or instructions: AAA U-Store & U-Move Inc. v. United Urban Corp. [2001] O.J. No. 3884 (S.C.J.), at para. 9; Currie v. Symcor Inc., [2007] O.J. No. 3225 (S.C.), at para. 115;

(c) puts at issue its reliance on legal advice (or the lack of legal advice): 0782484 BC Ltd. v. E-Pro Enterprises Inc., 2017 BCSC 2245, at paras. 41-58; Araya v. Nevsun Resources Ltd., 2019 BCCA 205, at paras. 31-38; or

(d) uses privileged documents as a sword: Brown v. Clark Wilson LLP, 2014 BCCA 185, at paras. 26-28.
[69] The Master found that it was not unfair to protect privilege in these circumstances. However, the appeal judge found that the Appellants had adduced cherry-picked snippets of evidence about what Mr. McQueen was or was not told by counsel about being a litigation guardian and the commencement of the proceeding. He held that it would neither be consistent nor fair to refuse to disclose other evidence in the Appellants’ possession, power or control dealing with Mr. McQueen’s dealing with the former lawyers for the purposes of determining whether he was acting as a de facto litigation guardian..

[70] The court is the gatekeeper, protecting litigants from inappropriate requests for disclosure and balancing fairness with the importance of solicitor-client privilege. It is not the law that waiver of privilege over one document or fact to which solicitor-client privilege attaches, impliedly waives privilege over other solicitor-client privileged information or documents. It must be shown that without the additional privileged documents, the information produced is somehow misleading: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1995 CanLII 7258 (Ont. S.C.), at para 41.

[71] In considering whether solicitor-client privilege had been waived, the appeal judge should have considered whether Mr. McQueen put his state of mind in issue when he deposed his affidavit and whether he relied on legal advice in forming that state of mind such that he waived privilege over associated documents or communications.

[72] The statements made by Mr. McQueen in his affidavit were factual in nature: that he was not made aware of the requirements of a litigation guardian nor was he asked to be a litigation guardian, and that he was not given a copy of the Statement of Claim. Even if the statements made were to be considered legal advice, he did not state that he relied on this advice or that it informed his state of mind. Mere reference to the circumstances under which a party received legal advice does not justify waiving solicitor-client privilege: Roynat Capital Inc., at para. 32, citing Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence, 4th ed. (Markham: LexisNexis Canada, 2014), at 14.147-14.158.

[73] When dealing with a possible implied waiver, the court must take into account the special status afforded to the privilege. Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance: Oliva, at para. 18. As such, it will only yield to implied waiver in the clearest of cases. The appeal judge erred in engaging in a balancing of interests of the parties rather than what was required – balancing fairness with the importance of privilege: Roynat Capital Inc., at para. 84. This is not a case where Mr. McQueen impugns legal advice or instructions, puts at issue his reliance on legal advice, or uses privileged documents as a sword – factors the Respondents submit have caused courts to find that fairness and consistency require ordering production of otherwise privileged documents. To order all privileged communications be produced so that Mr. McQueen can prove a negative is disproportionate and contrary to the near-absolute status of solicitor-client privilege. In my view, the Master was correct in her finding that it was not unfair to protect the Appellants’ privilege and the Respondents can adequately defend themselves given the existing medical evidence and the Appellants’ burden to prove incapacity.


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