The Supreme Court of Canada released two decisions last week
dealing with the issue of privilege: (1) Lizotte v. Aviva
Insurance Company of Canada 2016 SCC 52 which dealt with the issue of
litigation privilege; and (2) Alberta (Information and Privacy
Commissioner) v. University of Calgary 2016 SCC 53 which dealt with the
issue of solicitor-client privilege.
In both cases, the court clearly emphasized the importance
of both privileges as “substantive rights that are fundamental to the proper
functioning of our legal system”.
In the Lizotte case, in the course of an inquiry into
a claims adjustor, the assistant syndic of the Chambre de l’assurance de
dommages (the "syndic”) asked an insurer to send her a complete copy of
its claim file with respect to one of its insured. The syndic based her
request on section 337 of the Act respecting the distribution of financial
products and services (“Act”). In response, the insurer
produced some documents but withheld others alleging that they were protected by
either solicitor-client privilege or litigation privilege.
At a hearing, the syndic conceded that solicitor-client
privilege could be asserted against her and therefore the issue before the
court was limited to litigation privilege. The Superior Court of Quebec
concluded that litigation privilege cannot be abrogated absent an express
provision and that the provision in the Act was not "express" in that sense.
The syndic’s appeal was dismissed by the Quebec Court of
Appeal and further appeal to the Supreme Court of Canada was dismissed.
In an unanimous decision, the court held that litigation privilege is a common
law rule that gives rise to an immunity from disclosure for documents and
communications whose dominant purpose is preparation for litigation.
Litigation privilege differs from solicitor-client privilege in that litigation
privilege is to ensure the efficacy of the adversarial process . The
purpose of solicitor-client privilege is to protect a relationship.
Solicitor-client privilege is permanent whereas litigation privilege is
temporary and lapses when the litigation ends. In addition, litigation
privilege applies to unrepresented parties and to non-confidential documents.
However, the court held that litigation privilege is 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. Exceptions to litigation privilege include those relating to
public safety, to the innocence of the accused and to criminal
communications. However, because it is a class privilege it has nothing
to do with balancing competing interests on a case by case basis.
In this case, none of the exceptions applied. The court held that 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. Litigation privilege therefore cannot be
abrogated by inference and the Act did not apply to do so.
In the second case, in the context of a constructive
dismissal claim, a delegate of the Information and Privacy Commissioner of
Alberta ordered the production of records over which the University of Calgary
had claimed solicitor-client privilege. The delegate was acting in
accordance with the Office of the Commissioner’s solicitor-client privilege
adjudication protocol and issued a notice to produce the records. Under
section 56(3) of the Freedom of Information and Protection of Privacy Act
(“Privacy Act”), a public body was required to produce required records
to the Commissioner “despite…any privilege of the law of evidence”.
The University sought judicial review of the decision which upheld the
Commissioner’s decision but on appeal to the Alberta Court of Appeal, it was
found that “any privilege of the law of evidence” as used in the Privacy
Act did not refer to solicitor-client privilege.
The Supreme Court of Canada dismissed the appeal in three
separate, partially concurring reasons. In the first set of reasons
written by Justice Côté (Justices Moldaver, Karakatsanis, Wagner and Gascon
concurring), the court held that whether the relevant section of the Privacy
Act allows a review of documents over which solicitor-client privilege is
claimed is a question of central importance to the legal system as a whole and
outside the Commissioner’s specialized area of expertise. Therefore, the
applicable standard of review was correctness for both the decision that the
Commission had the authority to require production of the records over which
solicitor-client privilege was asserted and for the decision to issue the
notice to produce the records.
The majority held that the phrase “any privilege of the
law of evidence” does not require a public body to produce to the
Commissioner documents over which the solicitor-client privilege is
claimed. Solicitor-client privilege is no longer merely a privilege of
the law of evidence but a substantive right that is fundamental to the proper
functioning of our legal system.
In separate concurring reasons Justice Cromwell held that
the grammatical and ordinary meaning of the words “any privilege of the law
of evidence” includes solicitor-client privilege. Solicitor-client
privilege is both an evidentiary privilege and a substantive principle and it
was the evidentiary privilege that was at issue here.
He held that in this case even though the Commissioner had
the authority to compel production for review of records over which
solicitor-client privilege was asserted and assuming, without deciding, that
the correctness standard of review applied, she made a reviewable error to
order production in the face of the evidence submitted in relation to the claim
of privilege. The University’s claim of privilege complied with the
requirements of Alberta civil litigation practice at the time, and it was a
reviewable error for the Commissioner’s delegate to impose a more onerous
standard on the University in relation to its assertion of privilege than that
applicable in civil litigation before the courts.
Justice Abella in further separate but concurring reasons
held that that standard of review in this case should be reasonableness in
accordance with the Supreme Court’s prior decisions. However, she held
that the Commissioner’s decision to order disclosure was unreasonable.
The Commissioner should have exercised her discretion in a manner that
interfered with solicitor-client privilege only to the extent absolutely
necessary to achieve the ends sought by her enabling legislation. In
ordering disclosure, she did not sufficiently take into account the fact that
the University provided adequate justification for solicitor-client privilege
particularly in light of the laws and practices applicable in the civil
litigation context in Alberta.
Regards,
Blair
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