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The Supreme Court of Canada (Clearly and Expressly) Affirms the Importance of Solicitor-Client and Litigation Privilege

Posted in Case Comments, Privilege
Jessica Laham

In two recent companion decisions, the Supreme Court of Canada affirmed the importance of litigation privilege and solicitor-client privilege to the Canadian legal system. In Lizotte v. Aviva Insurance Company of Canada[1] (Lizotte), the Court recognized litigation privilege as a distinct and fundamental principle of the administration of justice, while in Alberta (Information and Privacy Commissioner) v. University of Calgary[2] (Alberta (Information and Privacy Commissioner)), the Court focused on issues of solicitor-client privilege. These decisions both confirm that for the legislature to abrogate either litigation privilege or solicitor-client privilege, nothing less than clear and express statutory language will suffice.

Lizotte v. Aviva Insurance Company of Canada

The central issue in Lizotte revolved around whether the the syndic of the Chambre de l’assurance de dommages (the “Syndic”) could compel production of an insurer’s entire claim file for an insured as part of an inquiry into a claims adjuster, even where the insurer claimed litigation privilege over a portion of the file.

The Syndic’s request was based upon s. 337 of the Act respecting the distribution of financial products and services (“ADFPS”), which requires insurers to forward “any required document” to the Syndic upon request.[3]

Although the insurer provided most of the claims file, it refused to provide documents over which it claimed litigation privilege. The Syndic proceeded to bring a motion for declaratory judgment.

The Supreme Court of Canada, upholding the decisions of both the Superior Court of Québec and the Québec Court of Appeal, dismissed the Syndic’s appeal, holding that litigation privilege could not be abrogated absent a clear, express statutory provision.

Writing for the Court, Gascon J. clarified the nature and strength of litigation privilege, which protects documents and communications whose dominant purpose is preparation for litigation.[4] While making clear that litigation privilege is distinct from solicitor-client privilege, Gascon J. identified three principal characteristics of litigation privilege:

  • Litigation privilege is a class privilege, meaning that once it is established that it applies to any given document, there is a prima facie presumption the document it protects is inadmissible, and there is no onus on the party asserting litigation privilege;[5]
  • There is no “balancing test” to be applied to determine whether litigation privilege should be applied. Instead, a specific exception to the privilege must be identified, such as public safety; innocence of the accused; criminal communications; or “evidence of the claimant party’s abuse of process or similar blameworthy conduct”;[6] and
  • Litigation privilege can be asserted against third parties, including any third party investigators who have a duty of confidentiality.[7]

Notably, the Court did leave open the possibility of additional specific exceptions to litigation privilege, including a possible exception for “urgency and necessity”. As none of the facts of the case were found to possibly justify such an exception, consideration of such an exception was left for another day.[8]

Having set out the characteristics of litigation privilege, the Court found that none of the recognized exceptions to litigation privilege applied to the documents in issue, and proceeded to consider the issue of whether section 337 of the ADFPS nonetheless required the insurer to produce otherwise litigation privileged documents.

The Court extended its reasoning from Canada (Privacy Commissioner) v.  Blood Tribe Department of Health (Blood Tribe), where the Court had held that in order to abrogate solicitor-privilege by statute, clear, explicit, and unequivocal language must be used,[9] and found that this same requirement applied in equal measure to documents protected by litigation privilege.[10]  Perhaps unsurprisingly, the language of “any required document” in section 337 of the ADFPS was found not to be sufficiently clear to amount to an express abrogation of litigation privilege.

Alberta (Information and Privacy Commissioner ) v. University of Calgary

The central issue in Alberta (Information and Privacy Commissioner) was whether language in the Alberta Freedom of Information and Protection of Privacy Act[11] (“FOIPP”) was sufficient to abrogate solicitor-client privilege.

In this case, a former employee of the University of Calgary (the “University”) sought production of records from the University through the Information and Privacy Commissioner of Alberta. The University produced some records, but refused to produce others on the basis that they were solicitor-client privileged.

After some back and forth between the University and a delegate of the Information and Privacy Commissioner of Alberta (the “Delegate”), ultimately, the Delegate issued the University a notice to produce records to the Commissioner under section 56(3) of FOIPP, which requires that a public body produce documents to the Commissioner “[d]espite…any privilege of the law of evidence”.[12]

On judicial review, the decision of the Delegate of the Commissioner was upheld, however, the Alberta Court of Appeal reversed the decision, finding that “any privilege of the law of evidence” did not include solicitor-client privilege.

Upholding the decision of the Alberta Court of Appeal, the Court concluded that the solicitor-client privileged records in issue should not have been ordered produced under s. 56(3) of FOIPP.

Writing for the majority, Côté J. found that the language of “any privilege of the law of evidence” did not meet the requirement of “clear and unambiguous legislative intent” to abrogate solicitor-client privilege as set out in Blood Tribe, noting that solicitor-client privilege had evolved beyond privilege of the law of evidence to a “substantive right fundamental to the proper functioning of the legal system.”[13] On this basis, the delegate did not have legislative authority to order production of solicitor-client privileged documents.

Interestingly, in concurring reasons, Cromwell J. concluded that the language of s. 56(3) of FOIPP was sufficiently clear and unambiguous to abrogate solicitor-client privilege.[14]  In separate concurring reasons, Abella J. found that the delegate’s decision should have been reviewed on a standard of reasonableness (both Côté and Cromwell JJ. Had determined the standard of review to be correctness), but that the delegate had acted unreasonably.[15]

Conclusion

Lizotte and Alberta (Information and Privacy Commissioner) are important developments in the law of privilege in Canada. Following Lizotte, litigation privilege will be rigorously protected as a distinct class privilege. Both Lizotte and Alberta (Information and Privacy Commissioner) also make clear that if the legislature wishes to abrogate either litigation or solicitor-client privilege, clear and express language will be required to do so.

Although in Lizotte the Court noted that the legislature does not necessarily have to use the term “solicitor-client privilege” in order to statutorily abrogate such a privilege,[16] given the finding in Alberta (Information and Privacy Commissioner) that “any privilege of the law of evidence” was not sufficiently clear, it seems apparent that the language necessary to abrogate either of these privileges will indeed need to be extremely “clear, explicit, and unequivocal.”[17]

Parties faced with an order to produce privileged documents pursuant to statutory authority would do well to consider whether the statutory language in issue does in fact meet the high threshold set out by the Court prior to producing such documents.

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[1] 2016 SCC 52.

[2] 2016 SCC 53.

[3] Act respecting the distribution of financial products and services, CQLR c D-9.2, s. 337.

[4] Blank v. Canada (Minister of Justice), 2006 SCC 39.

[5] Lizotte, supra, paras. 33 and 37.

[6] Ibid., para. 41.

[7] Ibid., para. 47.

[8] Ibid., paras. 43-45.

[9] 2008 SCC 44 at para. 2.

[10] Lizotte, supra, para. 63.

[11] Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25.

[12] Ibid., s. 56(3).

[13] Alberta (Information and Privacy Commissioner), supra, paras. 2, 28, 34, 37.

[14] Ibid., para. 81.

[15] Ibid.,  para. 137.

[16] Lizotte, para. 61

[17] Ibid., para. 5.