Canada: Reinforcing The Primacy Of Privilege

Last Updated: September 27 2017
Article by Jacob R.W. Damstra

"...privilege has thus become much more than an evidentiary privilege; it is a substantive
right with constitutional implications, if not constitutional proportions."
1

INTRODUCTION

At the end of 2016, the Supreme Court of Canada released two companion decisions affirming the fundamental importance of solicitor-client privilege and litigation privilege to the proper functioning of the Canadian legal system. In Alberta (Information and Privacy Commissioner) v. University of Calgary2 (Alberta IPC), the Court considered the implications of the elevation of solicitor-client privilege beyond a rule of evidence to a rule of substance and a fundamental policy of the law, while in Lizotte v. Aviva Insurance Company of Canada3 (Lizotte), the Court recognized litigation privilege as a distinct and fundamental principle of the administration of justice.4 These decisions both considered what legislative language would be sufficient to abrogate, set aside, or infringe solicitor-client privilege or litigation privilege, confirming that nothing less than clear, explicit, and unequivocal language will suffice.

This comment discusses Alberta IPC and Lizotte in some detail, as well as some of the implications of trending toward the triumph of privilege. Before moving into the discussion of these cases, the following section provides a brief background on the nature of privilege, with particular reference to solicitor-client privilege and litigation privilege.

BACKGROUND: THE NATURE OF PRIVILEGE

Simply put, privilege is the right of a party not to disclose evidence which may be relevant to the adjudication of a dispute. This right, in effect, denies the adjudicator – judge, jury, or otherwise – information in the form of documents or communications that might assist the adjudicator to ascertain the truth – the foundational goal of the Canadian justice system. Because privilege has the potential effect of obstructing this search for truth, the law demands that a given privilege be justified by an overriding societal interest, or, as stated by the Supreme Court of the United States and adopted by Chief Justice McLachlin, a "public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth".5

There are numerous different types of privileged communications, including, among others: solicitor-client privilege, afforded to communications between a client and a lawyer to obtain legal advice; litigation privilege, afforded to communications made for the dominant purpose of anticipated or pending litigation; settlement privilege, afforded to without prejudice communications to settle disputes; discovery privilege, afforded to information disclosed during the discovery process (also known as the deemed or implied undertaking rule); spousal privilege, afforded to communications between spouses; privilege for state secrets; privilege protecting the identify of police informants; and case-by-case privileges afforded to protect the confidentiality of a relationship where it is in the public interest to do so. The justifications or rationales for these various forms of privilege differ depending on their object and the protections they provide.6 Staying within the realm the Alberta IPC and Lizotte decisions, this comment will focus on the rationales for and the protections given by solicitor-client privilege and litigation privilege.

Solicitor-Client Privilege

Solicitor-client privilege, which is the strongest privilege protected by law and regarded as a cornerstone of the legal system,7 is justified by the nature of the confidential relationship between the lawyer and the client and the necessity of protecting the confidences of that relationship from compelled disclosure in judicial proceedings for both the relationship itself and the overall functioning of the legal system.8 The concern is that without assurances of confidentiality provided by privilege, people will not speak honestly and candidly with their lawyers, which in turn compromises the quality of the legal advice they receive.9 Thus, solicitor-client privilege emerges from the unique role of lawyers to provide advice to clients within a complex legal system, the confidential nature of the relationship, and the need for privacy in obtaining and acting on legal advice.10 Professor Adam Dodek refers to this rationale for the privilege as the "full and frank disclosure" argument.11 Professor Dodek also cites the subsidiary rationale of ensuring "a well-functioning adversary system"12 and the less widely-accepted rationale of "facilitating access to justice".13 Professor Dodek goes so far as to contemplate and propose a "rights-based justification for the privilege" based on the three pillars of dignity, privacy, and autonomy.14 Recognizing this rationale for solicitor-client privilege might require revisiting the scope of the privilege to reinforce the primacy of privilege for individuals but not necessarily for organizations; at this point, though, this theory of privilege has not been adopted by the courts.

It is important to briefly note that solicitor-client privilege attaches only to communications (although, as discussed below the Supreme Court of Canada is signalling a relaxation of this traditional restriction). Such communications may be verbal or written, in whatever form, but can also be made through visual depictions or gestures.15 While there is some uncertainty about whether silence can be privileged,16 or whether the identity and location of a client is privileged and in what situations,17 it is clear that neither the facts18 which underlie communications between a client and a lawyer19 nor the actions of a lawyer or a client20 are privileged. Physical objects, evidence, and non-privileged documents are not protected by solicitor-client privilege even if they are shared with a lawyer.21 More could be said on each of these points and others, indeed, much more has been said by the courts and by academics. For the purposes of this comment though, as a general principle, to qualify for solicitor-client privilege, a communication must be: (1) between a client and his or her lawyer who must be acting in a professional capacity as a lawyer; (2) given in the context of obtaining legal advice; and (3) intended to be confidential.22

The privilege that exists for communications between a lawyer and a client has been deemed a fundamental right and a substantive rule of law.23 To ensure public confidence in the legal system and the effectiveness of the privilege, solicitor-client privilege is categorical and approaches an absolute right, rather than one that is decided on a case-by-case basis.24 In Alberta IPC, the Court cautioned: "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.25

Litigation Privilege

Litigation privilege was once regarded as a branch of solicitor-client privilege and the two have frequently been confused or referred to synonymously. In Blank v. Canada (Minister of Justice), the Supreme Court of Canada clarified that litigation privilege is related to solicitor-client privilege, but conceptually distinct: "They often co-exist and one is sometimes mistakenly called by the other's name, but they are not coterminous in space, time or meaning."26 Justice Fish explained the distinction on the basis that litigation privilege is not directed at or restricted to communications between a lawyer and a client:

It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.27

Thus, pursuant to litigation privilege, documents prepared for the dominant purpose (but a "substantial purpose" is not enough28) of preparation for litigation, either obtaining legal advice in anticipation of or pending litigation or for gathering evidence for that litigation, are privileged.29 Litigation privilege, unlike solicitor-client privilege applies to all communications, even those of a non-confidential nature, between the solicitor or the client and third parties and includes material of a non-communicative nature.30 Examples include the lawyer's file and any oral or written communications between a lawyer and third parties, such as witnesses, investigators, or experts.31 Litigation privilege is "neither absolute in scope nor permanent in duration": it applies only in the context of litigation and only for so long as that litigation continues, ceasing upon the termination of the dispute.32 However, the Supreme Court commented in Blank that "related litigation" concerning proceedings brought after the original litigation that gave rise to the privilege could extend its effect.33

As noted in Blank, the modern rationale is that the exclusion of the evidence on the basis of litigation privilege is necessary to facilitate the adversarial system of dispute resolution.34 Since the fact-finding process is adversarial, the combatants need a "zone of privacy" to prepare for the hearing and resolution of their dispute.35 Litigation privilege creates and maintains a "protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate."36 The Supreme Court in Blank also noted that solicitor-client privilege and litigation privilege "serve a common cause: The secure and effective administration of justice according to law."37

Exceptions

As the brief foregoing background demonstrates, the privileges under consideration here bear many difference and some similarities – including a similarity of cause. Both solicitor-client privilege and litigation privilege share another feature: they are subject to certain exceptions. Exceptions to privilege are many and quite nuanced, not to mention issues arising out of waiver of privilege,38 and beyond the scope of this comment. Still, this section will briefly identify some of the exceptions commonly invoked to override privilege when claimed. The issue in both Alberta IPC and Lizotte, thus the subject of this comment, after all, is the sufficiency of statutory language to override these privileges as legislated exceptions to privilege. Thus, understanding the exceptions is necessary to understand the impact of these decisions.

Early in the move toward the primacy of privilege, the Supreme Court of Canada held in Pritchard: "privilege is jealously guarded and should only be set aside in the most unusual circumstances" and that it cannot be set aside by inference.39 Professor Dodek observes that while "Canadian law has long explicitly and implicitly recognized numerous exceptions... [t]he tendency in Canada has been to define the privilege broadly, admit of very few statutory overrides, explicitly recognize several exceptions and implicitly accept others."40

In the seminal case on exceptions to privilege, Smith v. Jones, the Supreme Court of Canada explained: "Despite the strength and importance of the privilege, it remains subject to certain well-defined and limited exceptions. These exceptions are not foreclosed and may be expanded in the future..."41 Shortly after Smith v. Jones, the Supreme Court of Canada cautioned in McClure that 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."42 Such "clearly defined circumstances" where privilege may be overridden include: where there exists a clear, serious, and imminent threat to public safety;43 where the innocence of an accused is at stake;44 where communications are of a criminal nature;45 and certain "lawyer exceptions" (defence against criminal allegations or civil liability, collection of fees).46 Each of these exceptions apply equally to litigation privilege,47 as does the exception recognized in Blank for "evidence of the claimant party's abuse of process or similar blameworthy conduct".48 Smith v. Jones also speculated on a possible national security exception, but no such exception has yet been invoked.

Professor Dodek observes that other exceptions have been proposed or actually developed and recognized, which include: to prevent money laundering; to overturn wrongful convictions; to determine the existence, execution, contents, or validity of a will; to respect Law Society regulations; and a fiduciary exception which applies in a trustee-beneficiary relationship.49 Professor Dodek also postulates on residual exception50 and proposes public information exception.51

Finally, we come to statutory exceptions, which is where Alberta IPC and Lizotte enter this comment. Both consider sufficiency of language to override privilege – Alberta IPC regarding solicitor client privilege, Lizotte regarding litigation privilege – and both notably strengthening the walls of privilege. A number of cases before Alberta IPC and Lizotte discussed statutory overrides of privilege,52 and the Supreme Court of Canada builds on all of these prior cases in Alberta IPC and Lizotte to reinforce the primacy of privilege. Most notably, in Blood Tribe, the Supreme Court of Canada held that any legislative provision capable of interfering with solicitor-client privilege must be read narrowly and a legislature may not abridge the privilege by inference, but may only do so with clear, explicit, and unequivocal language. This issue in Alberta IPC was whether the language in question was "clear, explicit, and unequivocal"; the issue in Lizotte was whether the same principle applied to litigation privilege.

UNIVERSITY OF CALGARY: ABROGATING SOLICITOR CLIENT PRIVILEGE

Facts: In this case, the Court was considering the sufficiency of language in section 56 of Alberta's Freedom of Information and Protection of Privacy Act 53("FOIPPA") to abrogate solicitor-client privilege. In the course of a constructive dismissal claim, a former employee of the University of Calgary made a request for access to information under FOIPPA, seeking records about her in the University's possession. The University provided some records, but claimed solicitor-client privilege over others.

Unsatisfied with this, the former employee brought a FOIPPA application seeking production of the withheld records. A delegate of the Information and Privacy Commissioner conducted an inquiry and issued a Notice of Inquiry requiring the University to provide a copy of the records or two copies of an affidavit verifying solicitor-client privilege over the records. The University opted for the latter option – producing a list of documents identified by page number and an affidavit indicating it was asserting solicitor-client privilege over the identified records. This practice complied with the law and civil litigation practice in Alberta at the time.

The delegate directed the University to substantiate its claim by providing the delegate a copy of the records or providing additional information about their contents. The University declined to do either, and, as a result, the delegate issued a Notice to Produce Records under section 56(3) of FOIPPA requiring the University to produce documents for review. Section 56(3) states:

Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).

The University refused and sought judicial review of the delegate's decision to issue a Notice to Produce Records. On judicial review, the Court upheld the delegate's decision. But, the Court of Appeal allowed the University's appeal, noting the Commissioner did not have statutory authority to compel production of records over which solicitor-client privilege was asserted. As a point of interest, the former employee's litigation was resolved prior to the judicial review application, and the production issue was therefore moot. Still, the sufficiency of statutory language in section 56(3) of FOIPPA was a matter of public importance regarding which the Supreme Court of Canada's guidance was deemed necessary.

Issue: Although the Supreme Court of Canada considered three issues in Alberta IPC, the main issue, and the focus of this comment, is whether the words "[d]espite... any privilege of the law of evidence" in section 56(3) of FOIPPA were sufficient to abrogate solicitor-client privilege.

Although there was some disagreement on the standard of review, the majority held that the standard was correctness.54 And the Court confirmed that the modern approach to statutory interpretation would be applied, even though legislative language purporting to set aside on infringe solicitor-client privilege – "a fundamental policy of the law" – must be interpreted restrictively and must demonstrate a clear and unambiguous intent to do so.55 However, debates about standards of review and principles of statutory interpretation are beyond the scope of this comment and the focus here will be on the Court's discussion of the importance of solicitor-client privilege and the sufficiency of statutory language to override it.

Analysis: Justice Côté, for five of seven judges of the Court, concluded "that 'any privilege of the law of evidence' is not sufficiently clear and precise to set aside or permit an infringement of solicitor-client privilege."56 Justice Côté gave found broad reasons for her conclusion, expanding in detail upon each: (1) solicitor-client privilege is not merely a rule of evidence; (2) Blood Tribe does not stand for the proposition that solicitor-client privilege is "a privilege of the law of evidence"; (3) the statutory scheme supports a finding that solicitor-client privilege is not set aside; and (4) even if there was clear and unambiguous legislative intent, this was not an appropriate case in which to order disclosure. Leaving aside the latter two reasons which are specific to Alberta IPC, and the second reason which merely pointed out that Blood Tribe was not determinative of the issue before the Court, Côté J.'s reasons for the majority clearly and unambiguously confirm the primacy of privilege.

For many of the reasons set out above in this comment, the majority held it was "indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice".57 Further, the privilege has "evolved from a rule of evidence to a rule of substance" according to Côté J.58 The Court also noted, but declined to comment on, the suggestion that previous Supreme Court of Canada jurisprudence granted solicitor-client privilege quasi-constitutional status. Justice Côté traced the privilege from its origins as an exemption from testimonial compulsion59 to a substantive rule that extended beyond the courtroom.60 She noted this expansion outside of the courtroom included circumstances involving search and seizure of documents in a lawyer's office61 and disclosure of documents in the context of access to information legislation.62 Finally, citing Lavallee, the majority affirmed that solicitor-client privilege is not "merely a rule of evidence", stating it is "a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law".63 As solicitor-client privilege comprises these different roles (evidentiary rule, substantive right, principle of fundamental justice), Côté J. then went on to find the case before the Court engaged the substantive aspect, not the evidentiary context, of the privilege. It was important in the analysis that the former employee who was seeking the information was not longer engaged in litigation and the Commissioner was not seeking to review the information "as evidence in order to decide a legal dispute", thus the case was not invoking the "evidentiary privilege".64

It is possible to question whether this reasoning is largely a legal fiction. Clearly, solicitor-client privilege is "a rule of evidence". Although the privilege goes beyond its evidentiary origins and has become a substantive right and a principle of fundamental justice, it remains "a privilege of the law of evidence." To hold that solicitor-client privilege is not a privilege of the law of evidence such that section 56(3) of FOIPPA could not abrogate the privilege because the context in which the records were requested were separate from a legal proceeding seems to create an unprincipled approach to whether statutory language is sufficient to override the privilege. Professor Dodek, discussing previous cases on access to information and privacy legislation comments "It would be absurd to assert that such language excludes solicitor-client privilege because it has become more than a privilege under the law of evidence... Unless indicated otherwise, this phrase should be interpreted to include solicitor-client privilege."65 Had the former employee been actively pursuing litigation and seeking records to tender as evidence, would that have changed the result, for example? Or if the Commissioner was being asked to decide on the merits of a dispute about the compellability of the records requested, would this have changed the nature of the analysis? These questions remain unanswered on the majority's reasons, but emphasize that as much as possible the primacy of privilege will prevail.

A brief note about Justice Cromwell's partially concurring reasons is warranted here, as he picks up on this concern about the artificial distinction between being "legal" and "evidentiary" privilege.66 Justice Cromwell wrote "to hold as my colleague Justice Côté would that solicitor-client privilege is 'a legal privilege' but not a 'privilege of the law of evidence' in FOIPPA is not justified by the text or the content of the legislation or by the principle of interpretation that the legislature must use clear language to authorize any abrogation of solicitor-client privilege."67 He would have held that section 56(3) of FOIPPA was sufficiently clear and unambiguous to permit the Commissioner to order production of records over which solicitor-client privilege is claimed. Justice Cromwell noted the privilege was both an evidentiary privilege and a substantive principle.68 Further, Cromwell J. directly challenged Côté J.'s contention that the evidentiary privilege was not at issue in this case. He stated "We are thus concerned with a claim of protection from disclosure required by legal authority, a matter falling squarely within the evidentiary privilege expressly referred to in the statutory language."69 Having concluded the grammatical and ordinary sense of the words of the section supported his conclusion, Cromwell J. went on to discuss other contextual factors in support of it as well. Specifically, he referred to the language in other sections of FOIPPA, the scheme of the Act, the legislative history of the Act, and parallel legislation all to support the conclusion that "the legislature expressed a clear intention to allow the Commissioner and his or her delegates to order the production of documents subject to solicitor-client privilege in the course of an inquiry in order to assess the claim of privilege."70 Ultimately, Cromwell J. agreed with Côté J. that the Commissioner's decision to order production was unnecessary and inappropriate in the circumstances.

Takeaways: While there was some disagreement amongst the Supreme Court justices on the sufficiency of the language in this case, the majority position – and the primacy of privilege – prevailed. What is significant about Alberta IPC is not just the Court's confirmation that solicitor-client privilege is a substantive right that is fundamental to the functioning of our legal system, but that even statutory schemes designed to increase access to information cannot override solicitor-client privilege unless the language explicitly empowers them to do so. What's more, it appears, following from Alberta IPC, that short of expressly referring to solicitor-client privilege or "substantive privileges" statutory language purporting to abrogate privilege in general may not be sufficient. Thus in a case like Alberta IPC, where compelled disclosure to an administrative officer alone constitutes an infringement of solicitor-client privilege, even if just for the purpose of verifying the privilege and even that officer has the specific mandate of overseeing the access to information and protection of privacy regime,71 it will be prudent to double-check the source of that officer's authority in light of this case.

LIZOTTE V. AVIVA: LITIGATION PRIVILEGE

Facts: In this case, released concurrently with Alberta IPC, the Supreme Court of Canada was considering whether the Blood Tribe standard applied to litigation privilege and whether language in section 337 of Quebec's Act respecting the distribution of financial products and services72 ("ADFPS") was sufficiently clear, explicit and unequivocal to overcome a claim of litigation privilege. An assistant syndic of the Chambre de l'assurance de dommages ("the Chamber") asked Aviva to send her a complete copy of its file with respect to one of Aviva's insureds in the course of an inquiry into a claims adjuster. The syndic of the Chamber was investigating a complaint regarding the professional conduct of a claims adjuster who was alleged to have made certain errors in managing the file. Aviva produced some documents but withheld others on the basis that some of the documents were protected by either solicitor-client privilege or litigation privilege. Litigation privilege, Aviva said, was invoked because the insured person in question had brought legal proceedings against Aviva to obtain compensation in relation to the claim at issue. The syndic moved for a declaratory judgment that section 337 of the ADFPS created an obligation to produce "any... document" concerning the activities of a representative being investigated by the Chamber. Section 337 states:

Insurers, firms, independent partnerships and mutual fund dealers and scholarship plan dealers registered in accordance with Title V of the Securities Act (chapter V-1.1) must, at the request of a syndic, forward any required document or information concerning the activities of a representative.

The Quebec Superior Court concluded that litigation privilege could not be abrogated absent express provision. The Court of Appeal upheld this conclusion. As with Alberta IPC, the production issues before the Supreme Court of Canada had become moot as Aviva had already settled the litigation with its insured and subsequently produced its entire file to the syndic.

Issue: The central issue of the appeal was whether Aviva could assert litigation privilege as a shield against the statutory requirement to produce "any...document" requested by the syndic. The Supreme Court of Canada was therefore required to determine: first, whether litigation privilege may be abrogated using general rather than clear, explicit and unequivocal language; and second, whether section 337 of ADFPS established a valid abrogation of litigation privilege.

Analysis: Justice Gascon, for the unanimous Court, concluded "that litigation privilege, like solicitor-client privilege, cannot be abrogated by inference and that clear, explicit and unequivocal language is required in order to lift it."73 He went on to hold that section 337 of ADFPS, which merely refers to the production of "any ... document" was a "general production provision that does not specifically indicate that the production must include records for which ... privilege is claimed" and was therefore not sufficiently clear, explicit and unequivocal language to abrogate litigation privilege.74

Recognizing the differences between solicitor-client privilege and litigation privilege, many of which are discussed above, Gascon J. held "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."75 From that starting point, the Court rejected the syndic's three arguments as to why litigation privilege should be limited in scope and not given the same protections against statutory overrides as solicitor-client privilege. Answering the syndic's arguments, the Court held: (1) litigation privilege is a class privilege; (2) litigation privilege is subject to clearly defined exceptions, not to a case-by-case balancing test; and (3) litigation privilege can be asserted against third parties, including third party investigators who have a duty of confidentiality.

First, Lizotte clarified that litigation privilege is indeed a class privilege. That is, once there is a document created for "the dominant purpose of litigation" and the litigation in question is pending "or may be reasonably apprehended" there exists a "prima facie presumption of inadmissibility".76 According to Gascon J., this prima facie inadmissibility likened litigation privilege to settlement privilege and informer privilege, which had previously been characterized by the Supreme Court of Canada as class privileges. As a result, the onus is not on the party claiming litigation privilege to establish it on the facts of the case, but rather on the opposing party to establish a clearly defined exception.77

Second, because litigation is a class privilege subject to clearly defined exceptions and not a case-by-case privilege, there is no need to embark on the exercise of balancing competing interests in the way posited by Doherty J.A. in General Accident Assurance Co. v. Churz.78 Because of the need for certainty in relation to exceptions for the fundamental privileges in order to ensure the proper functioning of the legal system as a whole, flexibility and discretion which might undermine the rationales of those privileges ought not be allowed. Therefore, as stated above, the same well-defined exceptions to privileges apply to litigation privilege as to solicitor-client privilege, and accordingly, the same test for a statutory override of the privilege can be applied.

Finally, the Court rejected the syndic's argument that litigation privilege could not be asserted against third parties. Justice Gascon reasoned that "disclosure of otherwise protected documents to third parties who do no have a duty of confidentiality would entail a serious risk for the party who benefits from the protection of litigation privilege."79 Further, because disclosure to a third party could result in a waiver of litigation privilege against all, and the open court principle applies to proceedings that could be initiated by a third party investigator, even entities with a duty of confidentiality like the syndic in Lizotte are precluded from infringing litigation privilege. Justice Gascon warned that "any uncertainty in this regard could have a chilling effect on parties preparing for litigation, who may fear that documents otherwise covered by litigation privilege could be made public."80

With those principles in mind, Gascon J. turned to consider whether it was open to Aviva to assert litigation privilege in order to refuse to produce the documents requested by the syndic. Because litigation privilege is a common law rule, the Court summarized the general principles applicable to legislative departures from such rules. There is a presumption that the legislature does not intend to change existing common law rules in the absence of clear language, thus the Supreme Court of Canada has imposed strict requirement for the abrogation of fundamental common law rules.81 Relying again on Blood Tribe, the Court affirmed that the legislature must use clear, explicit and unequivocal language to override privilege, which cannot be abrogated by inference.82

Interestingly, in Lizotte the Court specifically commented "the legislature does not necessarily have to use the term "solicitor-client privilege" in order to abrogate the privilege. An abrogation can be clear, explicit, and unequivocal where the legislature uses another expression that can be interpreted as referring unambiguously to the privilege."83 This statement provides little comfort in light of the majority decision in Alberta IPC though, where even the phrase "privilege of the law of evidence" (which solicitor-client privilege undoubtedly comprises) was held not to be sufficient.

The Court in Lizotte went on to conclude that the requirements in Blood Tribe apply with equal force to litigation privilege. Its stature as a class privilege and its overriding public interest in securing the effective administration of justice according to law and promoting both access to justice and quality of justice placed litigation privilege in the same realm as solicitor-client privilege.84 And, though Gascon J. made clear that the Court was not elevating litigation privilege to the same level as solicitor-client privilege, which is more absolute, Lizotte affirmed that litigation privilege was equally "fundamental to the proper functioning of our legal system" and "central to the adversarial system".85

In the result, the Court held: "A provision that merely refers to the production of "any...document" does not contain sufficiently clear, explicit and unequivocal language to abrogate litigation privilege."86

Takeaways: Unlike Alberta IPC, Lizotte was decided by a unanimous nine-judge Supreme Court of Canada. The Court elevated litigation privilege to the ranks of a growing number of other "fundamental privileges" including solicitor-client privilege, informant privilege, and settlement privilege. Unsurprisingly, "any...document" was not sufficient to abrogate such a fundamental privilege. Important to remember is the Court's confirmation that litigation privilege does apply to third parties, even those independent investigators who have a duty of confidentiality for the various reasons listed in this comment and fully explored in the decision. Therefore, as in the case of compelled disclosure in an access to justice and privacy regime, it will be prudent for entities whose records to which litigation privilege might attach are requested by any third party (investigator or otherwise) to confirm the statutory authority of that third party to make such a request.

TRENDING TOWARD THE TRIUMPH OF PRIVILEGE?

Alberta IPC and Lizotte appear to be two data points on a broader trend at the Supreme Court of Canada to confirm and clarify the primacy of privilege. There will, of course, be exceptions. But these will be few and far between. The Court has extended litigation privilege to the level of a fundamental, substantive right it seems, and significantly constrained the type of legislative language that will be sufficient to override or abrogate solicitor-client privilege, litigation privilege, or any of the other – possibly expanding – categories of fundamental privileges. For now, it seems the trend will continue in this direction toward preserving and protecting well-established privileges while possibly expanding and clarifying the scope and impact of others, thus reinforcing the primacy of privilege.

Paper delivered at 12th Annual Straight from the Bench Civil Litigation Conference, Middlesex Law Association, London ON, 8 June 2017

Footnotes

1. Adam M. Dodek, Solicitor-Client Privilege (Markham, ON: LexisNexis Canada Inc., 2014), at p. 1i.

2. Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555 ["Alberta IPC"].

3. Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521 ["Lizotte"].

4. Notably, the Supreme Court of Canada released two other decisions earlier in 2016 which clarified and confirmed the scope and primacy of privilege in different contexts. See Canada (Attorney General) v. Chambre des notaires du Quebec, 2016 SCC 20, [2016] 1 S.C.R. 336 ["Chambre des notaires"]; Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381 ["Thompson"].

5. M. (A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 19, citing Trammel v. United States, 445 U.S. 40 (1980), at p. 50; see also General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.), at pp. 330-32, 346-49.

6. Justice Paul M. Perell, "A Privilege Primer" (May 2006), at p. 1, online: LSUC (www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=11517), citing College of Physicians and Surgeons of British Columbia v. British Columbia Information and Privacy Commissioner) (2002), 23 C.P.R. (4th ) 185 (B.C.C.A.); Davies v. American Home Assurance Co. (2002), 60 O.R. (3d) 512 (Div. Ct.).

7. See Dodek, Solicitor-Client Privilege, at p. 1.

8. R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289; R. v. Campbell, [1999] 1 S.C.R. 565, at para. 49.

9. Smith v. Jones, [1999] 1 S.C.R. 455, at para. 46.

10. R. v. McClure, [2001] 1 S.C.R. 445 at para. 2 [McClure].

11. Dodek, Solicitor-Client Privilege, at pp. 7-8; see Greenough v. Gaskel (1883), 1 My. & K. 98, 39 E.R. 618 (Ch Div.) and Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (Eng. C.A.).

12. Dodek, Solicitor-Client Privilege, at p. 9, citing General Accident Assurance Co. v. Chrusz, at para. 93.

13. Dodek, Solicitor-Client Privilege, at pp. 9-10; see also Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, at para. 40, per Deschamps J. (concurring) and General Accident Assurance Co. v. Chrusz, at para. 92.

14. Dodek, Solicitor-Client Privilege, at pp. 11-12; Adam M. Dodek, "Reconceiving Solicitor-Client Privilege" (2010) 35 Queen's L.J. 493.

15. Dodek, Solicitor-Client Privilege, at pp. 117-18.

16. Dodek, Solicitor-Client Privilege, at pp. 118-19.

17. Dodek, Solicitor-Client Privilege, at pp. 125-29.

18. Although, the Supreme Court of Canada has recently suggested that it has "rejected a category-based approach to solicitor-client privilege that distinguishes between a fact and a communication for the purpose of establishing what is covered by the privilege" and "facts connected with that relationship ... must be presumed to be privileged absent evidence to the contrary": Thompson, at para. 19.

19. Dodek, Solicitor-Client Privilege, at pp. 119-23.

20. Dodek, Solicitor-Client Privilege, at pp. 123-24.

21. Dodek, Solicitor-Client Privilege, at pp. 130-32.

22. Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860 [Descôteaux]; R. v. Campbell, [1999] 1 S.C.R. 565.

23. Canada v. Solosky, [1980] 1 S.C.R. 821; Descôteaux; McClure; Lavallee, Rackel & Heintz v. Canada (A.G.), [2002] 3 S.C.R. 209 [Lavallee].

24. Perell J., "A Privilege Primer", at p. 3, citing: Lavallee; McClure; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 21, [2004] S.C.R. 809 [Pritchard].

25. Alberta IPC, at para. 26.

26. Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 1.

27. Blank, at para. 27.

28. General Accident Assurance Co. v. Chrusz.

29. R.J. Sharpe, "Claiming Privilege in the Discovery Process", in Law in Transition: Evidence [1984] Special Lect. L.S.U.C. 163, at pp. 164-65; Blank, at para. 28; Wheeler v. Le Marchant (1881), 17 Ch. D. 675 (C.A.) at p. 681; Susan Hosiery Limited v. Minister of National Revenue, [1969] 2 Ex. C.R. 27.

30. Dodek, Solicitor-Client Privilege, p. 23.

31. Lizotte, at para. 19.

32. Blank, at paras. 34 and 36-37; Dodek, Solicitor-Client Privilege, at p. 24.

33. Blank, at paras. 38-41.

34. Blank, at para. 27.

35. Perell J., "A Privilege Primer", at pp. 1-2.

36. Blank, at para. 40, quoting Sharpe, "Claiming Privilege in the Discovery Process", at p. 165.

37. Blank, at para. 31.

38. See Dodek, Solicitor-Client Privilege, at c. 7.

39. Pritchard, at paras. 17, 33.

40. Dodek, Solicitor-Client Privilege, at p. 257.

41. Smith v. Jones, at para. 53.

42. McClure, at para. 35.

43. Smith v. Jones.

44. McClure.

45. Smith v. Jones.

46. See discussion in Dodek, Solicitor-Client Privilege, at pp. 292-304.

47. Smith v. Jones, at para. 44.

48. Blank, at para. 44.

49. Dodek, Solicitor-Client Privilege, at pp. 274-314.

50. Dodek, Solicitor-Client Privilege, at p. 314.

51. Dodek, Solicitor-Client Privilege, at pp. 315-16.

52. See, for example, Pritchard; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574.

53. Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 ["FOIPPA"].

54. Alberta IPC, at paras. 19-27 and 130-38 (per Abella J. dissenting).

55. Alberta IPC, at paras. 28-29.

56. Alberta IPC, at para. 37.

57. Alberta IPC, at para. 34, citing Blood Tribe, at para. 9.

58. Alberta IPC, at para. 38, citing: Blood Tribe, at para. 10; Thompson, at para. 17; and Chambre des notaires, at para. 28.

59. See Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 834.

60. Alberta IPC, at para. 40, citing Descôteaux, at p. 875.

61. See Lavallee; Maranda; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401.

62. See Blood Tribe; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32; Ontario (Public Safety and Security) v. Criminal Lawyers Association, 2010 SCC 23, [2010] 1 S.C.R. 815.

63. Alberta IPC, at para. 41; Lavallee, at para 49.

64. Alberta IPC, at para. 42.

65. Dodek, Solicitor-Client Privilege, at p. 379.

66. Justice Abella also wrote partially concurring reasons, exclusively on the appropriate standard of review to apply in this case, suggesting reasonableness was more in line with the jurisprudence of the Court. She would have found the delegate's decision to issue a Notice to Produce Records to be unreasonable in the circumstances.

67. Alberta IPC, at para. 73.

68. Alberta IPC, at para. 82, citing: Lavallee, at para. 49; Foster Wheeler Power Co. v. Societe intermunicipale de gestion et d'elimination des dechets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456, at para. 34; and Descôteaux, at pp. 872 and 875.

69. Alberta IPC, at para. 87.

70. Alberta IPC, at para. 120.

71. Alberta IPC, at para. 35.

72. Act respecting the distribution of financial products and services, CQLR, c. D-9.2 ["ADFPS"].

73. Lizotte, at para. 64.

74. Lizotte, at paras. 66-67, quoting Blood Tribe, at para. 66.

75. Lizotte, at para. 4.

76. Lizotte, at para. 33, citing Blank, at paras. 38 and 59.

77. Lizotte, at para. 37 and following.

78. General Accident Assurance Co. v. Churz, at p. 365.

79. Lizotte, at para. 48.

80. Lizotte, at para. 53.

81. Lizotte, at paras. 56-57.

82. Lizotte, at para. 59, citing Blood Tribe, at paras. 2 and 11.

83. Lizotte, at para. 61.

84. Lizotte, at para. 63, citing: Blood Tribe, at para. 9; and Blank, at paras. 27, 31, and 40.

85. Lizotte, at para. 64, quoting Blood Tribe, at para. 9.

86. Lizotte, at para. 67.

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