In two decisions rendered today, the SCC upheld the importance of solicitor-client privilege and litigation privilege, of central importance to the legal system as a whole. The Canadian Bar Association intervened in both cases to protect rights that are fundamental to the proper functioning of our legal system.
CBA President René Basque welcomed the decisions and thanked the counsel who ably represented the CBA in these interventions.
ALBERTA (INFO. AND PRIVACY COMMISSIONER) v. UNIVERSITY OF CALGARY
In Alberta (Info. and Priv. Comm.) v. Univ. of Calgary, the majority of the Court ruled on the power of provincial information and privacy commissioners to order the production of documents over which an organization has claimed to be protected by solicitor-client privilege. FOIPP s. 56(3) “does not require a public body to produce to the Commissioner documents over which solicitor-client privilege is claimed.”
“Solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal. … (It) is no longer merely a privilege of the law of evidence, having evolved into a substantive protection.”
CBA Pro Bono Counsel:
- Past-President Michele Hollins,Q.C., Dunphy Best Blocksom LLP
- James L. Lebo, Q.C., of McLennan Ross LLP
- Jason Wilkins, Dunphy Best Blocksom LLP
Read the SCC’s decision on Alberta (Info. and Priv. Comm.) v. Univ. of Calgary
Read our Alberta (Info. and Priv. Comm.) v. Univ. of Calgary factum
Lizotte v. Aviva Insurance Company of Canada
In Lizotte v. Aviva Insurance Company of Canada, the Court unanimously decided that an insurance regulator could not order the production of documents claimed to be protected by litigation privilege. Although sometimes confused with solicitor-client privilege, the Court noted that litigation privilege is distinct in that it applies only in the context of and contemporaneously with litigation, need not involve confidential documents, and does not require a relationship with a lawyer. The Court stated the purpose of litigation privilege is to facilitate the adversary process and that it serves an overriding public purpose.
“In Quebec, as in the rest of the country, litigation privilege is therefore inextricably linked to certain founding values and is of fundamental importance. That is a sufficient basis for concluding 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.”
CBA Pro Bono Counsel:
- Mahmud Jamal, Osler, Hoskin & Harcourt LLP
- Alexandre Fallon, Osler, Hoskin & Harcourt LLP
- W. David Rankin, Osler, Hoskin & Harcourt LLP
Read the SCC’s decision on Lizotte v. Aviva
Read our Lizotte v. Aviva factum