Deidre Newman

In child protection appeal proceedings, the society brought a motion seeking disclosure of the Office of the Children’s Lawyer’s clinical investigator notes, which the court held were protected by solicitor-client privilege and refused to disclose.

The motion was dismissed and the responding parties sought costs.

Although costs are not presumptively awarded against a children’s aid society under rule 24 of the Family Law Rules, the court exercised its discretion under s. 131 of the Courts of Justice Act.

The court found the society engaged in procedural misconduct by attempting to re‑litigate disclosure issues after previously withdrawing a similar motion, causing unnecessary expense to the opposing parties.

Exceptional circumstances justified a costs award against the society.

In a child protection appeal, the moving party sought disclosure of the Office of the Children’s Lawyer’s clinical investigator notes and records relating to a child represented by counsel.

The request was brought under s. 74 of the Child and Family Services Act after the Office of the Children’s Lawyer filed affidavits in support of a motion to admit fresh evidence on appeal.

The court held that communications between the child, counsel, and the clinical investigator assisting counsel formed part of the solicitor‑client relationship and were protected by solicitor‑client privilege.

The privilege belonged to the child and could not be waived by other parties.

The court further found that compelling disclosure would undermine the confidentiality essential to effective child representation and would also amount to an abuse of process given earlier opportunities to seek the material.