In Canada (Public Safety and Emergency Preparedness) v.
Information Commissioner of Canada, 2013 FCA 104, the Federal
Court of Appeal provides a useful reminder of the extent to which
the solicitor-client privilege applies to policies agreed upon by
At the core of this decision is a request made to the Royal
Canadian Mounted Police ("RCMP") and the
Department of Justice of Canada ("DOJ")
under the Access to Information Act. This request aimed at
obtaining a Protocol that sets out the respective roles of the RCMP
and the Attorney General, as well as the procedures to be followed
when the RCMP possesses documents relevant to civil litigation
against the Federal Crown.
The RCMP and the DOJ disclosed the Protocol, but excised
everything except its title and the signatories of the document,
invoking the solicitor-client privilege and the exemption for an
advice developed by the government.
Faced with the refusal to disclose the substance of the
Protocol, the requester complained to the Information Commissioner.
The Information Commissioner concluded that the Protocol did not
fall within the exemptions. The Federal Court
("FC") concurred. According to the FC,
certain formal matters worked against the existence of a
solicitor-client privilege. It was thus found that the Protocol did
not contain any legal advice and "was not concerned with
providing legal advice", as the Protocol was not, in itself,
advice but rather an agreement setting out respective roles and
responsibilities; hence it could not tell from the text of the
Protocol whether it reflected earlier legal advice obtained by the
In their appeal to the Federal Court of Appeal
("FCA"), the Ministers submitted that
the substance of the Protocol is covered by the solicitor-client
privileged and that the acting bodies properly exercised their
discretion, i.e. not disclosing the Protocol.
Rejecting an all-or-nothing approach, and thus considering that
only part of a document can be privileged, the FCA ordered
disclosure of the last fourteen paragraphs of the Protocol, while
leaving the first three paragraphs to the discretion of the
qualified access coordinators.
The FCA considered general principles related to the
solicitor-client privilege. It acknowledged that not every
communication between lawyers and their clients are privileged;
only communications directly related to the seeking, formulating or
giving of legal advice are privileged, along with communications
"within the continuum in which the solicitor tenders an
advice". This protected continuum will include a communication
that forms part of that necessary exchange of information of which
the object is the giving of legal advice.
Consequently, the disclosure of an unprotected communication
should not have the potential to undermine the purpose behind the
The FCA ruled that documents such as policies and actions shaped
by legal advice are not necessarily themselves legal advice, and do
not necessarily form part of the protected continuum of
The FCA considered the last fourteen paragraphs of the Protocol
to be of such nature and thus not to fall within the continuum. The
Court found that those paragraphs were negotiated and agreed-upon
operational policy formulated after any legal advice has been given
and outside any continuum of communication surrounding such
However, on the first three paragraphs of the Protocol, the FCA
ruled that they memorialize the content of certain legal
obligations of the Federal Crown for the benefit of the RCMP and
the DOJ and that their personnel engaged in document management.
Accordingly, those paragraphs could be kept confidential.
This case is a good reminder that a document or action that is
of the nature of an agreement or the product of a negotiation is to
be considered not to be covered by the solicitor-client privilege.
In addition it makes it clear that the solicitor-client privilege
does not protect a document that is operational in nature or an act
that is made past the stage of seeking or providing advice. This
means that any act made for the purpose of conducting regular
business following a legal advice or anything involved in the
operational implementation of a legal advice would fall outside the
scope of the privilege.
Canada (Public Safety and Emergency Preparedness) v.
Information Commissioner of Canada, 2013 FCA 104
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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