HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Michelle Hogan, Martine Stonehouse,
A.B. and Andy McDonald
Complainants
-and-
Her Majesty the Queen in Right of Ontario
As represented by the Minister of Health and Long-Term Care
Respondent
INTERIM DECISION
Panel: Patricia E. DeGuire, Mary Ross Hendriks and Ajit Jain
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
APPEARANCES
Ontario Human Rights Commission ) Anthony Griffin, Counsel
) Brian Smith, Counsel
) Michelle Krepp, Student-at-Law
Martine Stonehouse, A.B., and Andy McDonald, ) Susan Ursel, Counsel
Complainants ) Eugenia Capillary, Student-at-Law
Her Majesty the Queen in Right of Ontario as represented )
by the Ministry of Health and Long-Term Care, ) Jonathan Batty, Counsel
Respondent )
DeGuire, Vice-Chair and Jain, Member (Ross Hendriks,Vice-Chair, dissenting in part):
INTRODUCTION
1These are the Reasons and Order of the majority of the panel (“majority”) of the Human Rights Tribunal of Ontario (“Tribunal”), including the panel’s unanimous oral Decision on the motion heard on June 18, 2003.
2The Ontario Human Rights Commission (“Commission”) seeks an order compelling the Respondent to produce the documents described in Schedule A of its Motion Record. The Complainants support the Motion.
3Moments before the hearing commenced, the Respondent’s counsel filed its Motion Record, among other documents. Tabs D and E of its Motion Record contain catalogues of documents over which the Respondent asserts “solicitor-client privilege”.
4The documents described at Tabs D and E (“impugned documents”) are of marked significance in this motion. The Respondent has classified them and sorted them into specific sections: but, not in the traditional way required by the Rules of Civil Procedure.
5Tab D consists of a few sections. One section is entitled “Severed Cabinet Documents”. Attached to it, is a “Schedule” captioned: “Cabinet Documents associated with Ontario Regulation 528/98 (Severed on the Basis of Solicitor and Client Privilege)”. Another part of Tab D is a catalogue that has five columns indicating: “document”, “date”, “description” and “assertion of privilege”, respectively. The documents are numbered chronologically. Under the final heading, there is a notation indicating whether privilege is being claimed. The Respondent asserts “solicitor-client advice” for part or parts of some documents and for all of the severed portions of some documents in Tab D. The Respondent has compiled the actual documents in a separate binder and refers to it as “Schedule “D””.
6In Tab E of the Respondent’s Motion Record, there is a catalogue captioned “Schedule of Privileged Documents” with four columns indicating: “number”, “date”, “description” and “privilege”, respectively. Each document is numbered chronologically. The Respondent asserts “solicitor-client privilege” over most documents. In a separate binder captioned “Privileged Documents”, there are documents counsel has classified as “privilege”. The Respondent has compiled those documents in a binder and refers to it as “Schedule “E””.
7The Respondent states that it has produced to the Commission the documents over which it does not claim privilege. There are two Affidavits sworn on June 17, 2003, by Ms Barbara F. Stewart, legal assistant in the Constitutional Law Branch of the Ministry of the Attorney-General. The Affidavits state that those said documents have been delivered and accepted by the Commission: (Tab D).
8The Commission does not refute that it received certain documents. Counsel for three Complainants informed the Tribunal that she had received certain documents from the Respondent. According to Mr. Smith, the other Complainant had informed him that she had received the said documents.
9There are two parts to these Reasons. During this proceeding, the Tribunal gave a unanimous oral decision on the preliminary issue. Part I contains the Tribunal’s written Reasons for its Decision on the preliminary issue. Part II contains the Reasons and Order for the main motion and the partial dissent.
PART I
DECISION
10The motion is granted in part.
11To be clear, the Tribunal’s ruling on June 18, 2003, was only on the preliminary matter about whether the impugned documents are sufficiently described to enable the Tribunal to make a proper determination on whether “solicitor-client privilege” attaches to them.
ISSUE
12The only issue before the Tribunal in this motion is whether solicitor-client privilege attaches to the impugned documents.
13At the onset of the motion, the lead counsel for the Commission informed the Tribunal that all counsel acquiesced in putting one issue before the Tribunal. The Tribunal, although surprised, agreed to deal with the motion on that basis. Accordingly, the Tribunal concludes that the parties have decided to limit the motion to issue of “solicitor-client privilege”. So, for the purpose of this motion, all other issues and arguments contained in the parties’ facta are abandoned. The Tribunal’s rationale is discussed fully below under the caption “Analysis”.
Preliminary Issue
Are the impugned documents sufficiently described to enable the Tribunal to make a proper determination on whether “solicitor-client privilege” attaches to them?
14All counsel concurred in the issue before the Tribunal. The bulk of counsel’s presentations were oral legal arguments. There is a paucity of evidence before the Tribunal even though the doctrinal concept of privilege is based on evidentiary considerations. The bulk of the counsel’s arguments focused on the key elements of “litigation privilege”.
15During arguments, the Commission raised the issue about the sufficiency of the Respondent’s description of the impugned documents. To varying extents, counsel made submissions on this preliminary matter. However, they commingled their submissions with their submissions on the main issue. Thus, the Tribunal separates the preliminary matter from the substantive issue as well as the submissions, so that it can parry the conflated submissions.
The Parties' Position
16The Commission’s over-arching argument is that the Respondent has failed to lay the proper foundation to establish a claim of solicitor-client privilege for the impugned documents. It asserts that the “sole evidentiary basis” on which the Respondent seeks to establish privilege is inadequate. It points to the Respondent’s Affidavit sworn by Ms Susan Fitzpatrick on June 10, 2003: (exhibit 1) to buttress this argument.
17Referring specifically to paragraphs 5 and 6 of the said Affidavit, the Commission argues further that the Respondent had failed to establish a case for privilege. The affiant failed to describe or identify the impugned documents adequately: she merely recites a conclusion. Further, the Commission asserts that the Respondent has failed to meet the “evidentiary legal test.”
18The Commission submits that the Tribunal has authority to inspect documents over which privilege has been claimed. It asserts that it is necessary for the Tribunal to inspect the documents if it does not have enough evidence before it. Citing Ansell Canada Inc. v. Ions World Corp., [1998] O.J. No. 5034 (“Ansell”), at para. 10, the Commission states what it believes ought to be the constituent essentials of an affidavit for it to be deemed sufficient to identify documents for which a claim of privilege has been asserted.
19Counsel submits that when one compares Ms Fitzpatrick’s Affidavit, especially paragraphs 5 and 6 to what the court say is appropriate, it is insufficient. He states that in Ansell, supra, where the court had to determine whether the affidavit contained sufficient information, the court did not order that the documents be produced. It ordered inspection to satisfy itself about the doubt raised.
20The Commission urged the Tribunal to inspect the impugned documents to determine whether they are indeed privileged.
21In conjunction to adopting the Commission’s submissions, counsel for three Complainants submits that it was imperative that the Tribunal look at the forty-two documents contained in Schedule “D”. Her rationale is that the face of the documents does not support a claim of solicitor-client privilege. She referred to a particular document for which privilege has been claimed. She states that in her observation, the document was not written to a lawyer or by a lawyer. It states that public opinion is a concern. It states the groups of people who might be concerned. It lists a number of stakeholders. The next group is erased on the basis of solicitor client privilege. She stresses that looking at the documents is necessary because no evidentiary basis to support withholding that information has been put before the Tribunal.
22The Respondent’s counsel submits that there is a particular approach to the adjudication of solicitor-client privilege. Citing General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) p. 321 (C.A.), (“Chrusz”) at 348, he states that the adjudication of such matters must be fact sensitive in that the decision should be based on the evidence put forward to support the claim and in the context in which the claim is made. He argues that the Respondent had given adequate identification and description of the documents.
23Alternatively, counsel submits, if the Tribunal finds that the description is inadequate, the proper remedy is to order the Respondent to compose a “better list”. Counsel cites Davies v. American Home Assurance Co. (2002), 2002 CanLII 62442 (ON SCDC), 60 O.R. (3d) 512 (Div. Ct.) (“Davies”) at 525 to support his position. He submits that Ansell, supra, is instructive in the approach a trier of fact and law should adopt where the determination has been made that insufficient information has been provided.
24Nonetheless, the Respondent’s counsel argues that inspecting the documents is not an ordinary remedy. He says inspection should be restricted to those cases where blanket assertion of privilege has been claimed. Counsel states that the “government has not made any such blanket claim. Each claim is document-specific and detailed and responsive.” Counsel cites Health Services and Support-Facilities Subsector Bargain Assn. v. British Columbia, 2002 BCSC 1509, [2002] B.C.J. No. 2464, (“Health Services and Support”) para. 11, to support that position.
25Counsel implores the Tribunal “to resist the urge” to review the documents.
Ruling
26At the conclusion of submissions, after a short deliberation, the Tribunal ruled unanimously that it ought to examine the documents to determine whether solicitor-client privilege attaches to them.
27It is important to note at the outset that, as a trier of fact and law, this Tribunal has the full panoply of power as the civil or criminal courts to deal with the issues of privilege even though currently, it does not have specific rules on how to deal with documents where privilege is contested. Support for that proposition may be found in Ontario Human Rights Commission v. Dofasco Inc. (2001), 2001 CanLII 2554 (ON CA), 57 O.R. (3d) 693 (C.A.) (“Dofasco”), at para. 57. Further, Rule 4 of the Tribunal’s Rules of Practice empowers it to make determinations on matters by adopting analogous rules.
28In that vein, the Tribunal is empowered to order several remedies to protect the document(s) for which a claim of privilege has been asserted. Such remedies include, the ordering of a further affidavit of documents, cross-examination or further cross-examination or inspection of the impugned documents: (Ansell, supra, at para. 20; Davies, supra, at para. 26). To hold otherwise, would be tantamount to eviscerating the Tribunal’s duty to protect and preserve solicitor-client privilege, when asserted, and to control its own process.
29To that end, the courts have reviewed or supported the reviewing of documents with a view to disclose only the content that is patently necessary: (Davies, supra) at para. 18). In this case, the Tribunal believes that reviewing the document is the best remedy.
Analysis and Reasons
30The Tribunal was satisfied that, on the face of Ms Fitzpatrick’s Affidavit, the Respondent fails to meet the evidentiary burden for the Tribunal to take a prima facie decision on whether legal advice privilege attaches to the impugned documents. In conjunction, the Tribunal found that even the Respondent’s description ascribed to each document and itemized in Tabs D and E was insufficient.
31The court’s conclusion in Ansell, supra, at para. 10, is instructive on this point:
It was established under the previous rules, that, when the issue of privilege is raised in an affidavit of documents, the affidavit must provide sufficient information to permit the document to be identified. Further, the document must be described sufficiently to enable the Court to make a “proper determination” of the issue. This was emphasized by Reid, J. in Grossman et al. v. Toronto General Hospital et al. (1983), 1983 CanLII 1975 (ON HCJ), 41 O.R. (2d) 457 (H.C.) where the reasoning in Welsh-Canadian Construction Co. Ltd. v. Churchill Falls (Labrador) Corp. Ltd. (No. 1) (1979), 9 C.P.C. 229 (Nfld. S.C.) was strongly endorsed. Reid J. approved the following passage in the head note of Welsh-Canadian Construction Co. Ltd. as a succinct statement of the extent of the required description:
Such a description should include the function, role and status of the receiver and sender of the documents in question and their relationship to the party to the action, the grounds for the claim of privilege, and a description of each document consistent with the law that renders it privileged.
31Although the issue before the court was litigation privilege, it can be applied in this case because the focus there, as here, is on the sufficiency of evidence when “privilege” is asserted and the description in an affidavit or otherwise described is inadequate to assist in deciding whether privilege exists.
32The Tribunal observes that none of the counsel for the Commission and the Complainants chose to cross-examine the affiant, Ms Fitzpatrick. She was present. In fact, all agreed that the affiant’s presence was not necessary. Nonetheless, in light of the ground of privilege asserted in this case, the Tribunal believes that any evidence culled during cross-examination might have been limited in scope or of little probative value.
33Another phenomenon is that the Respondent does not assert privilege over all the documents. Some have been produced. It is apposite to state that because one asserts privilege over documents does not render them so. Privilege attaches only if the touchstones are established. That determination resides within the Tribunal’s power.
34Further, the Respondent says it has claimed privilege on a document-by-document basis and has provided adequate identification and description of each document in Tabs D and E. The Respondent takes the position that since it has not asserted blanket privilege, the Tribunal has no authority to review the documents.
35The Tribunal disagrees. The Tribunal is not aware of any law that supports counsel’s proposition. Contrary to counsel’s submission, paragraph 11 of Health Services and Support, supra, does not buttress such a proposition at all. It is helpful to the reader to reproduce that paragraph:
In advancing the claim to solicitor-client privilege and public interest immunity, the Defendant submits 187 bundles of documents for review by the Court. While exerting solicitor/client privilege and public interest immunity, the Defendant is content that the Court reviews the documents to decide whether and, if so, under what conditions the documents should be disclosed. The references which follow refer to the document number that has been provided in the Supplement to the List of Documents of the Defendant as well as the document number given to the documents as referred to in the Affidavits of the five individuals who have sworn Affidavits in support of the position taken by the Defendant.
36That paragraph is no more than the court’s description of the voluminousness of the documents submitted to it. The fact that the defendant had submitted 187 bundles of document on which it asserted privilege was not determinative of any legal principle before that court. It offers no legal authoritative value to the Tribunal on the issue before it.
37The Tribunal recognises that the Respondent has not made a blanket assertion of solicitor-client privilege. Counsel had attempted to identify each document for which he asserts privilege.
38It is important to note, however that a decision whether to inspect “privilege-asserted” documents is not predicated upon an assertion of blanket privilege. There must be particular circumstances that engender the inspection of documents. Specifically, it is the allegation and finding that the evidentiary considerations adduced by a party are insufficient. In those circumstances, there is no other pragmatic way to make a determination on whether privilege exists other than to look at the documents piece by piece. Notably, inspection is a remedy that can be adopted for any type of privilege asserted. In the Tribunal’s view, the best person to do the inspection is the trier of fact and law: that way, confidentiality is ascertained.
39It is appropriate to say that examining the documents does not vitiate the “class status” of legal advice privilege. Nor does it interfere with any communicative continuum that existed between the lawyer and the client.
40It is settled law that solicitor-client privilege is one of the few blanket or class privileges known in law. It operates whenever the touchstones for its existence are established. The criteria are well established: (Chrusz, supra, at 346, citing R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263).
41As stated above, in the Tribunal’s view, it has the full panoply of power as in a civil or criminal proceeding to deal with the issue of privilege. This is well within the Tribunal’s inherent power to control its processes. Thus, there is little significance that currently, the Tribunal does not have specific rules to deal with documents where privilege is contested. Support for that proposition is implicit in Dofasco, supra, at para. 57.
42Having said that, it is important not to stray from the real issue at hand. The question here, of course, is not whether the Respondent could or should have claimed blanket privilege. It is whether the Tribunal should inspect the impugned documents. Here, the Commission (supported by three parties) alleges that the Respondent’s evidentiary considerations adduced are insufficient. And, the Tribunal so found.
43The Tribunal is satisfied that there is no other pragmatic way to make the determination on whether privilege exists other than scanning the documents piece by piece. The individual examination of documents on which one asserts legal advice privilege does not vitiate its “class status”. Nor does it interfere with a communicative continuum between the client(s) and counsel, if it existed.
44Inspecting the impugned documents was the most pragmatic remedy for several reasons. The Tribunal is not content to simply order production or to dismiss the motion summarily based on the insufficiency of the descriptive information before it. That would have been inappropriate. Nor does the Tribunal believe it would have been proper to simply order production based on the evidence on the face of the record. In addition to its quasi-judicial duty to diligently foster solicitor-client privilege, as a human rights tribunal, it has a duty to sedulously protect privileged information regardless of who asserts the privilege.
45Other functional considerations informed the Tribunal that inspection of the documents is proper. First, time is indeed of the essence. The members of the panel had conflicting schedules in July and August, and, the hearing on the merits is scheduled for September 2003. Second, which flows from the first, the Tribunal is concerned that in the event the parties were not satisfied with the Respondent’s new list, there would not be enough time to deal with the matter before the hearing on the merits. So, more than likely, the Tribunal would have had to adjourn the hearing. Third, and significantly, the Tribunal was concerned about the Respondent’s dilatory conduct with respect to its direction to the Respondent to serve disclosure by March 17, 2003. The Tribunal was not convinced that the Respondent would produce a new list in a timely manner. It had taken the Respondent several months before it had complied with the Tribunal’s directive to provide disclosure to the parties. Fourth, the Tribunal believed that examining the documents was the most efficacious remedy.
46For those reasons, the Tribunal ordered the Respondent to submit to it immediately all the impugned documents indicated in Tabs D and E of the Respondent’s Motion Record for its examination. The Respondent complied immediately: it submitted Schedule “D” and “E” to the Tribunal for inspection.
PART II
The Main Issue: Solicitor-client Privilege
47To illustrate its objection to the Respondent’s claim of solicitor-client privilege, the Commission referred to several documents identified in Tabs D and E. The Respondent had erased or severed certain information on the basis of solicitor-client privilege from those documents before it had produced them to the Commission. The Commission argues that on the face of those documents legal advice was neither sought nor given. It stresses that because the recipient or the sender is a lawyer does not give them privilege status. As well, the Commission submits that it is not enough to say privilege attaches to a document because it is a “Cabinet submission prepared by a lawyer.” That submission is well taken.
48In addition, the Commission argues that the Respondent has not established that the “dominant purpose” for creating the documents was for the giving of solicitor-client advice. “Policy advice is not privilege,” it argues emphatically. In particular, the Commission refers to Item 1 of Tab D and asserts that “it appears to relate to a meeting where Dr. Dickie from the Clarke Institute attended. He argues stridently that “privilege would be lost because Dr. Dickie was present.” That is, the Respondent has “waived” privilege because the advice was imparted to a third party. Therefore, in those circumstances, the Commission urged the Tribunal to order the Respondent to disclose and produce those documents.
49Finally, the Commission states that it has “absolute faith in the Tribunal to look at the documents and still conduct the hearing on the merits.”
Analysis
50The Commission frames its motion as one in which it seeks an order to compel the Respondent to produce certain documents. In its factum, the Commission had enumerated several grounds for its motion including that: (i) the Respondent had failed to assert any claim of privilege or public interest immunity with respect to the documents listed in Schedule A to its Notice of Motion; (ii) the Respondent had not listed the documents in its possession and control that fall within the realm of the documents it requested in Schedule A to its Notice of Motion; (iii) the documents were arguably relevant to the issue raised in the pleadings; and (iv) counsel had failed to comply with the Tribunal’s direction to the Respondent to make disclosure to the parties by March 17, 2003.
51It is helpful to note here again that before the hearing commenced, lead counsel for the Commission informed the Tribunal that all the parties had concurred in the decision to put one issue before it, that is, whether “solicitor-client privilege” attaches to the impugned documents. Lead counsel for the Commission states:
What the Commission will be asking this Tribunal to do…is to look at those documents for which an assertion has been raised that solicitor-client privilege prevents production, and have this Tribunal rule whether solicitor-client privilege attaches to those documents or portions of the documents. If it does, I don’t get to see them. If solicitor-client privilege does not apply, then they ought to be released. That’s what we need to do. I think we have about an hour and a half of argument to put those competing positions to the Tribunal, and then leave it to the Tribunal.
52Absent submissions on any other ground, the Tribunal believes that it would be improper to make findings on any other ground including public interest immunity (colloquially referred to as “Cabinet privilege”). Further, the Tribunal is not prone to fetter the litigation strategy of counsel: particularly if they are senior counsel. Therefore, as stated earlier, the Tribunal concludes that the other grounds that the parties have raised in their facta are abandoned.
53The Commission (adopted by the Complainants) argued the motion as a motion to compel disclosure and production of documents. The Respondent mirrored the Commission’s position.
54Before turning to the issue of whether legal advice privilege attaches to the impugned documents, the Tribunal believes it is apt to deal with the scope of solicitor-client privilege. What emerges from a scrutiny of case law and writings on solicitor-client privilege is that solicitor-client privilege is an intricate legal doctrine that has evolved with time. In its evolution, there has been a distinct branching, and yet a blending of some of its constituent factors. The result is a conflation of concepts, which is manifested where the exercise of the legal advice privilege is asserted in the realm of litigation. This conflation is evinced in this motion.
Legal Advice Privilege (or Solicitor-Client Privilege)
Quære: What falls within the rubric of solicitor-client privilege? What is the correct terminology?
55This motion raises a second preliminary issue. This is about the scope, the correct terminology and what constitutes solicitor-client privilege. None of the counsel set out for the Tribunal which branch of solicitor-client privilege is being asserted in this case. If counsel construed solicitor-client privilege as synonymous with legal advice privilege, they put forward only a paucity of evidence and arguments to support the ground of legal advice privilege though counsel referred to the term during arguments. Conjunctively, the authorities on which the parties rely, except for Chrusz, supra, focused on litigation privilege.
56In assessing the arguments of counsel, which were indeed circumscribed, there is no doubt that there was a conceptual fusion of legal advice privilege and litigation privilege. As the Respondent’s counsel aptly stated, each counsel drew different “wisdom and guidance” from the legal authorities on which they relied. Based on the parties’ assertions, it is reasonable to conclude that the parties meant the legal advice branch of solicitor-client privilege.
57The apparent confusion or inconsistency in the use of the proper terminology, and about what constitutes solicitor-client privilege is endemic in Civil, Criminal and Administrative litigation, between bench and bar. This has resulted in a conflation of the scope of legal advice privilege and litigation privilege. Doherty J.A., dissenting in part, has analysed this phenomenon in Chrusz, supra, at 355, albeit with reference to the dissent in a particular case:
While Major J. spoke in terms of client-solicitor privilege, he in fact limited his observations to circumstances in which litigation privilege would apply. It is unclear whether Major J. used the phrase “solicitor-client privilege” in the same sense that I use it or whether he used the term in a way that conflates client-solicitor privilege with litigation privilege. As Watson and Au observe in “Solicitor-Client Privilege and Litigation Privilege in Civil Litigation”, supra, at pp. 333-35, there is considerable confusion with respect to terminology in this area of law. (Original case omitted).
58There is the proposition that this legal malady emerged from and is sustained by the sedulous attempt to reconcile and uphold two important historical values, viz: confidentiality on one hand and access to complete information on the other, by delineating one precept from the rubric of the other. Confidentiality is the engine of legal advice privilege. Access to complete information is the hub of litigation privilege. Both are diametrically opposed each to each. (See Chrusz, supra, at 342).
59The Tribunal acknowledges the numerous writings by highly learned persons on whether litigation privilege should even be recognised as “solicitor-client privilege” at all: (e.g., see Sopinka, Lederman and Bryan, infra, – quoted in paragraph 60). Significantly, “legal advice privilege” and “litigation privilege” are fraternal values. They have one common goal: to protect communication between solicitor or barrister and client. Yet, each is distinct. Each has a different scope because they serve markedly different purposes.
60In Chrusz, supra, Carthy J.A., for the majority, in analysing the scope of litigation privilege, cited Sopinka, Lederman and Bryant’s observation in their evidence text entitled, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at p. 653:
Although [litigation privilege] was spawned out of the traditional solicitor-client privilege, the policy justification for it differed markedly from its progenitor. It had nothing to do with clients’ freedom to consult privately and openly with their solicitors;1 rather, it was founded upon our adversary system of litigation by which counsel control fact-presentation before the Court and decide for themselves which evidence and by what manner of proof they will adduce facts to establish their claim or defence, without any obligation to make prior disclosure of the material acquired in preparation of the case. Accordingly, it is somewhat of a misnomer to characterize this aspect of privilege under the rubric, (solicitor-client privilege), which has a peculiar reference to the professional relationship between the two individuals. (At 330: emphasis added).2
61In the evolution of solicitor-client relations, it can be said that conceptually, legal advice privilege and litigation privilege comprise solicitor-client privilege. Pragmatically, this is in harmony with a functional approach to the exercise of solicitor-client privilege. It cannot be said enough that these two traditional fraternal values have one common goal: to protect communication between a lawyer and a client: (Lac La Ronge Indian Band v. Canada, 1996 CanLII 6897 (SK QB), [1996] S.J. No. 555, (Q.B.)). Grotsky J. articulated this important observation as follows:
Today, it is generally recognized that there are two distinct branches of solicitor and client privilege: the litigation privilege and the legal advice privilege. The litigation privilege protects from disclosure all communications between solicitor and client, or third parties, which are made in the course of preparation for any existing or contemplated litigation. The legal advice privilege protects all communications, written or oral, between solicitor and a client that are directly related to the seeking, formulating or giving of legal advice; it is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communication in which the solicitor tenders advice; it is not confined to telling the client the law and it includes advice as to what should be done in the relevant legal context. (Para. 8)
Grotsky J.’s erudite comments are instructive and are posited for guidance in this analysis.
62In light of the recent evolution of the law on privilege, yielding to pragmatic functionality, it can be said that “solicitor-client privilege” is the generic term that has two distinct branches: legal advice privilege and litigation privilege. The adoption of these terms may help to deflate this menacing conflation and the confusion in the application of these concepts.
63It would be well within the scope of pragmatic functionality to call the generic term “lawyer-client privilege.” From here onward, the Tribunal uses the terms “legal advice privilege” as opposed to “solicitor-client privilege”.
64It cannot be forgotten that legal advice privilege and litigation privilege are judge-made rules about a solicitor’s and barrister’s duty to be vigilant about his or her client’s confidential information. For they were to protect the back-dooring of a right that a client enjoyed. That is, they precluded a lawyer - solicitor or barrister - from being a compellable witness to tell all about her or his client’s business that was disclosed to him or her in confidence.
65These precepts have been modified from time to time, legal advice privilege less so, but the pristine values remain. Their genesis emerged and grows from the desire to protect the liberty, life and the security of the person: an ideology that lies at the very heart of human rights in contemporary democracies. Accordingly, judicial decisions ought to be in harmony with the realities of societal dynamics and the need to foster lawyer-client relations, yet preserving the historical values from which they emerged. Legal advice privilege, a “substantive rule”, is a principle of fundamental justice: (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445) (“McClure”), at para. 41). In that stratum, it has been elevated to a status within the rubric of section 7 Charter rights.
66On its own, legal advice privilege, seems to be the less developed, and the less understood of the two branches. In this case, it is important to establish the differences between the two branches of privilege for several reasons: (i) the underlying rationale and considerations for legal advice privilege are different from those that underlie litigation privilege. All the parties agreed that the ground is legal advice privilege, yet, as argued before this Tribunal, there seems to be a fusion of the two branches; (ii) both privileges serve different purposes: there is no novel balancing task – just few exceptions in legal advice privilege; (iii) each branch of solicitor-client privilege requires different considerations in determining whether to order production of documents.
67In Chrusz, supra, Carthy J.A. emphasises the importance in understanding the differences between these two branches. He quotes excerpt from the lecture of Professor Sharpe (as he then was) - (He uses the term solicitor-client privilege as oppose to the term legal advice privilege):
It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are at least three important differences between the two. First, solicitor-client privilege applied only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest that underlies the protection accorded communication between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice. (Chrusz, supra, at 330 – Sharpe’s reference is omitted).
68It is clear that legal advice privilege protects the confidential relationship between lawyer and client. As stated above, this privilege is a conventional doctrine that has evolved into a sacrosanct civil and legal right parallel to the rights guaranteed under section 7 of the Charter. Like any Charter-right or human right, it is not absolute. But, it “must be as close to absolute as possible to ensure public confidence and retain relevance.” It will yield only in certain clearly defined circumstances: (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 35). Therefore, it should neither be asserted frivolously, nor be treated lightly.
69It is clear that legal advice privilege “does not involve the balancing of interests on a case-by-case basis.” (McClure, supra, at para. 35). Distinctly, there are just a few clearly defined exceptions. Understandably, the touchstone required to limit this substantive right is extraordinarily high, as can be seen from the courts’ sedulous attempts to preserve its pristine value. Notably, it is not subject to the “dominant” or “substantial” purpose test at all.
70On the other hand, litigation privilege facilitates the protection of a client’s or a third party’s communication from its adversary in the process of litigation. The crucial consideration under this branch is whether the communication was created for the “dominant” or “substantial” purpose of pending or existing litigation. And, even if so created, there must be a balancing of the parties’ interests in determining whether to disclose or produce the communication.
71In a case, as here, where legal advice privilege has been asserted over documents for which production is being sought, the crucial question is whether the purpose of the impugned communication was to seek or provide legal advice, opinion or analysis: (College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665, [2002] B.C.J. No. 2779, (“College of Physicians of British Columbia”) at para. 29: reversed on other grounds at [2003] S.C.C.A. No. 83).
72Applying the above principles and observations, having reviewed the documents, the Tribunal is satisfied that the legal advice privilege branch is engaged in this case. The Tribunal now answers whether the purpose of the impugned documents was to seek or provide legal advice, opinion or analysis.
Findings Regarding the Documents in Tabs D and E
73The Tribunal finds that the bulk of the documents produced in full in Schedules “D” and “E” were created to seek or provide legal advice, opinion and analysis. However, based on evidentiary considerations, the Tribunal is not satisfied that legal advice privilege attaches to the information the Respondent expunged from four specific documents it produced to the other parties.
74The four documents that engendered concerns for the Tribunal are as follows:
(i) Part of Item 9 at Tab E (produced in full at Tab 9 in Schedule “E”);
(ii) Item 17B of Tab D (produced in full at Tab 17, sub-tab B in Schedule “D”);
(iii) Item 1 of Tab D (produced in full at Tab 1 in Schedule “D”); and
(iv) Item 9 of Tab D (produced in full at Tab 9 in Schedule “D”).
75It cannot be forgotten that voluntarily, the Respondent produced part of those documents to the Commission and the Complainants except for the expunged or severed information. In addition, it produced other documents.
76In determining whether legal advice privilege attaches to the severed information, the Tribunal finds it necessary to consider them within the content and the context of the documents from which they were expunged and other impugned documents. In making that finding the Tribunal is mindful of two notions. First, mentioning legal advice communication in correspondence may not constitute waiver of legal advice privilege. Second, the partial or whole production of documents, that belong to a “file of documents”, that is, essentially the compilation of communication between solicitor and client on a particular matter, may constitute intended waiver of privilege.
77With respect to Tab 9 at Tab E, the Tribunal is content that the notation on page 2 qualifies as legal advice privilege. The Tribunal is satisfied that the expurgated information was created to obtain legal advice that was conveyed from one counsel to another.
78The Tribunal finds that in this case, no privilege attaches to the “sender and recipient information” and the title of the interoffice memorandum. The Tribunal deals with the former first.
79The Respondent says it has provided a copy of the body of the communication to the Commission. It had erased the “sender and recipient information” because it is privileged, and releasing those “details” would disclose privileged information. The Respondent argues that if that information is divulged, the content of the advice will be exposed because one can guess by just “knowing the names of legal counsel” and their expertise.
80The Tribunal is nonplussed by this argument. It must be remembered that the Respondent has voluntarily produced the entire document to the Commission except for this information and the paragraph on page 2 the Tribunal has ruled is privileged.
81The Respondent’s position gives rise to an ancillary issue whether, in this case, legal advice privilege attaches to the names of the author, the recipient or both, of the impugned document. Counsel did not cite any legal authority to support his position even though he was asked about the legal authority for his submission. In his view, he felt that the Tribunal should have some concern about communication from “legal counsel to legal counsel” because it would provide the identity of the counsel.
82As alluded to above, counsel has wittingly or unwittingly divulged that the “sender and recipient information” is nothing more than names. There is no evidence before the Tribunal that either counsel was, or is, the Respondent’s client. It seems redundant to state that the tritest proposition in law is that both branches of solicitor-client privilege belong to the client: not legal counsel.
83There are at least two general rules to consider when counsel asserts that a client’s name is protected by legal advice privilege. First, counsel cannot refuse to disclose the identity of the client for whom he asserts privilege. The identity of his client is not the subject of professional confidence: (Bursill v. Tanner (1885), 16 Q.B.C. 1, per Lord Esher, at 4, cited in Re Ontario Securities Commission and Greymac Credit Corp. Re Ontario Securities Commission and Prousky (1983), 1983 CanLII 1894 (ON HCJ), 41 O.R. (2d) 328, at 329). Second, legal advice privilege attaches to a name only if the person whose name the solicitor seeks to protect is his or her client and that person divulged his or her name to counsel in confidence. (See Thorson v. Jones (1973), 1973 CanLII 1105 (BC SC), 38 D.L.R. (3d) 312 (B.C.S.C.)).
84Indeed, a client’s name may very well be protected by legal advice privilege in certain circumstances: (Lavallee, Rackel & Heintz v. Canada (Attorney-General); White, Ottenheimer & Baker v. Canada (Attorney-General); R v. Fink, 2002 SCC 61, [2002] S.C.J. No. 61, at para. 28) (Lavallee, supra)). Such a determination is based on evidentiary considerations.
85In this case, even if one was to postulate that either counsel or both were the Respondent’s clients, the facts, or lack thereof, before this Tribunal do not support a claim of privilege for either name. There is no evidence before the Tribunal that either counsel identified herself to the Respondent, in confidence, as the author or recipient of the interoffice memorandum.
86Finally, the Respondent offered voluntarily to divulge the names of the author and recipient of the document. Accordingly, the Tribunal finds that neither identity constitutes privileged information. So, no privilege attaches to the “sender and recipient information”. Therefore, the Tribunal finds that the Respondent should produce this information to all the parties.
87Concerning the “title” of memorandum at Item 9 of Tab E, the Tribunal finds that privilege does not attaches to the mere “title” of the inter-office memorandum. Having disclosed the document, with few expurgations, anyone could guess with total accuracy what the “title” of it is. The Respondent adduced no evidence at all to support why the title of the memorandum attaches privilege. It is a curious phenomenon that the Respondent has not argued that the content of this impugned document is not relevant to an issue in this Complaint. Thus, the Tribunal finds that the subject-matter of the writing should be produced to the parties.
88With respect to Item 17B of Tab D (produced in full at Tab 17 sub-tab B in Schedule “D”), the Tribunal finds that the expurgated information does not have even a semblance of legal advice privilege. In fact, its relevance seems innocuous in the content and context of the document. In the scheme of things, it cannot be placed at all. Accordingly, the Tribunal finds that the entire document should be produced to all the parties.
89Before dealing squarely with the issue of whether any privilege attaches to Item 1 of Tab D (produced in full at Tab 1 in Schedule “D”), it is helpful to describe all the documents that are contained in it. It is helpful to state at this juncture that these documents are part of the impugned documents in Schedule “D” over which the Respondent has asserted solicitor-client privilege.
90The Respondent describes the content of this tab as follows:
Copy of electronic memo from Laurel Montrose (Counsel) to Susan Fitzpatrick (Director, Provider Services Branch, MOH) enclosing “Notes for Minister Elizabeth Witmers’s [sic] Briefing Regarding Sex-Gender Reassignment Surgery” drafted by Pauline Ryan (Acting Manager, Provider Payments and Policy, Provider Services Branch, MOH). Portions of document are severed for solicitor-client privilege: (“Briefing Notes”). (Emphasis added).
91The Tribunal observed that the author intended the document as a draft before it was sent to Ms Montrose. The Briefing Notes consist of several pages. The Respondent has produced the first page to the Commission. It is the “Contents” page: it lists the three documents as follows:
Issue Notes: Sex Change Procedure – Provincial comparison – Confidential Advice to the Minister.” Below that there is an indication as follows: “MOH STAFF ATTENDING” – Staff from Provider Services Branch, Staff from Legal Services Branch, Dr. Dickie from the Sex Reassignment Surgery Unit at the Clarke Institute of Psychiatry.
92Also, the Respondent has produced the documents, attached to the issue note, entitled “Sex Change Procedures” except for paragraphs 7 and 8; and “Provincial Comparison” in full to the parties. It is the document that is entitled “Confidential Advice to the Minister”, for which the Respondent asserts “solicitor-client privilege”.
93Specific to this document, the Commission submits, that “policy advice is not privileged.” Further, the Commission submits that the document “appears to relate to a meeting where Dr. Dickie, from the Clarke Institute, attended.” Therefore, privilege was lost because Dr. Dickie was present. Neither the Commission’s nor the Complainants’ counsel adduced any evidence to support these submissions.
94There are at least three reasonable inferences one can draw from the Commission’s arguments: (i) the impugned document is a policy paper prepared by Ms Ryan and therefore not privileged; (ii) Ms Ryan is not the client; nor is she sheltered under the umbrella of “client”; and (iii) Dr. Dickie was not an agent of the “client”: he is a third party and therefore, privilege is waived.
95The Respondent submits that in the Cabinet process, the documents that have been severed fit into the “continuum of legal advice”. He avers that he has divided those documents into three categories. To paraphrase counsel: (a) “no privilege”; (b) “privilege – legal advice”; and (c) a “blending”. In the latter category, there is a blending of facts and law – where advice is given to do “something”.
96The Tribunal deals with the sub-issue concerning Ms Ryan. There is the argument that the Commission’s point about Ms Ryan’s status in the “solicitor/client” relations is rather fleeting and, it is not substantiated with evidence. As such, it has no merit and should be ignored.
97Even if that were a tempting way to deal with that proposition, that approach may lead to grave misunderstandings in this case. The consideration that emerges from that comment is integral to the Commission’s position that the specific document is not privileged either because the content of the document was not made in confidence, in that it was just a policy paper, or that Ms Ryan is not a client, or both. The Tribunal addresses both perspectives below.
98It is clear from the evidence that Ms Montrose is a legal counsel for the Ministry of Health. It is clear on the face of the record that Ms Ryan, in her capacity as Acting Manager, Provider Payments and Policy, Provider Services Branch, MOH, drafted the impugned document. By inference, the document wended its way to Ms Montrose. In turn, Ms Montrose reviewed it and then sent it to Ms Fitzpatrick. Also, she sent a copy to Ms Ryan and Ms Wilson: the latter, her colleague at MOH Legal Services Branch.
99The interoffice memorandum states as follows: “Susan, here is Pauline’s final note, with my minor amendments and my approval. You can attach this email as evidence of my sign-off, if required.”
100The Tribunal heard evidence from the Respondent that Ms Fitzpatrick is the designate, by analogy, to the Proceedings Against the Crown Act, as the Ontario Government official who can speak to the possession of all Ministry and Cabinet documents at issue. There is no evidence or argument before the Tribunal by any party about who constitutes a “client” or the “client” for the purpose of this case.
101More particularly, none of the counsel adduced any evidence or made any submissions about whether Ms Fitzpatrick and Ryan are “clients” for the purpose of this case, or in the broader sense, in the light of their status as employees of the Ministry of Health. Further, there is no evidence or law before the Tribunal concerning Dr. Dickie other than the implicit submission that he attended the meeting and therefore, his presence waived privilege.
102After deliberating on these questions, the majority of the panel took the decision that it requires more information before making a determination whether privilege attaches to two particular documents. Even in the wake of the paucity of evidence, the Tribunal felt duty-bound to make further enquiries rather than order the document produced or not to be produced and risk an unfair result to any of the parties. For while there might be other means for the Complainants to establish a prima facie case, if “privilege” attaches to those documents, the damage that may ensue, if the information is divulged, may not be curable.
103The Registrar was directed to write to the parties and ask for submissions on limited defined questions. The letter to the parties states as follows, verbatim:
The Panel has asked me to relay the following to all the parties:
It is clear on the face of the record that Ms Ryan, in her capacity as “Acting Manager, Provider Payments and Policy, Provider Services Branch, MOH”, composed the impugned documents identified as items 1 and 9 of Tab D of the Respondent’s Motion Record. The Tribunal would like submissions on the nature and role of Ms Ryan in the “solicitor-client privilege” relations scheme of things. In other words, is she a “client” and how so? What is the circumstance in which her writing was rendered? Also, the Tribunal notes that Dr. Dickie’s name is indicated on the Briefing Notes as a person who would have attending the meeting. Did he attend the meeting? At who’s request? And in what capacity did he attend the meeting if he attended?
What is the protocol followed when a Cabinet Minister requires legal advice or a Briefing Note in a situation as the one before the Tribunal, whether the advice is provided by its seconded legal services or any of the Ministry of the Attorney-General’s legal services?
The Tribunal directs that this information be submitted to it peremptorily, no later than 5:00 p.m. on July 11, 2003.
104In response to the Tribunal’s communication, the Respondent forwarded “Supplementary Submissions” on July 11, 2003. Its relevant and useful responses are contained in paragraphs 16, 17, 18, 21 and 24 to 32 inclusive. Counsel’s comments in paragraphs 19, 20, 22 and 23, are clearly irrelevant to the Tribunal’s questions. They are discourteous in scope and offend the propriety of this Tribunal.
105At this juncture, the Tribunal believes that it is apposite to remind the Respondent’s counsel that as counsel for the Attorney-General of Ontario, his role before a tribunal is to help it by bringing and presenting information impartially and not to act antagonistically or discourteously.
106The Commission says it received the document containing the Respondent’s Supplementary Submissions days after counsel filed it with the Tribunal. The Commission makes no factual or legal rebuttal to the Respondent’s Supplementary Submissions. It did make objections to what it characterized as the Respondent “improperly attempting to re-argue issues that had already been decided by the Panel.” None of the Complainants made supplementary response to the Tribunal. In fact, counsel for three of the four Complainants declined expressly to do so.
107The Commission made certain submissions during the motion that give rise to a pivotal question. That is, when government is a party, how broadly can the net of “client” be cast? In other words, is a government employee ever covered under the cloak of “client” so that solicitor-client privilege extends to her or to him? The answer is not based on lexicon: but solely on the facts. The short answer is: it depends.
108The more specific questions that engender here are whether Ms Ryan, a senior policy employee, is covered under the cloak of “client”. Can she use the sword of “privilege”? First, the Tribunal deals with the broader question. Then it answers the specific question about Ms Ryan.
What constitutes a "client" when government is a Party?
109The complexity of government and the necessity for it to plan and implement its goals requires the delegation of functions and authority to diverse staff. Specifically, a minister has primary power and can delegate her or his power, with or without limitation, to her or his deputy or other officers of the ministry to carry out a minister’s its duties. It is inconvenient and may be impractical for a minister, the political head of the department, to carry out even the functions that an “ordinary client” would do. So, many functions are delegated to staff where they must be done at the local level. The attendant authority is delegated with them and so are the privileges and rights.
110More specifically, in our complex governmental scheme, it is not necessary for a minister to communicate directly with her or his salaried “in-house” legal counsel to preserve confidentiality in communication where ultimately, he or she seeks legal advice on any issue. In fact, it might be impractical and inappropriate to do so. It is normal for staff, including officials, ordinary employees or specific delegated agents, to perform these functions.
111This is a historical phenomenon that has been analysed and its practicality recognised positively by law lords and scholars: (see, e.g., Duncan v. Cammell Laird, [1942] A.C. 624 (H.L.), at 638, Viscount Simon; and Peter W. Hogg and Patrick J. Monahan, Liability of the Crown (Scarborough: Carsewell, (3rd ed.) 2000), at p. 85. Pragmatically, the Legislatures have enacted statutes to deal with this eventuality3.
112Specifically, section 30 of the Evidence Act, R.S.O. 1990, c. E.23 provides for that delegation. That section permits a “deputy head or other officer of the ministry” to object to the disclosure of documents over which a ministry asserts “privilege”. Acting under that power, has the same effect “as if such member of the Executive Council or head of the ministry were personally present and made the objection” to the disclosure of documents in the “official possession, custody or power of a member of the Executive Council or of the head of a ministry of the public service of Ontario.”
113Indeed, that provision deals with the raising of objection where one seeks production of documents over which the Crown asserts “privilege”. By necessary implication, in dealing with matters within that scope, any of those persons can be deemed a “client” when acting in the scope of his or her duties. Furthermore, the privilege in section 30 of that Act is referable to the common law solicitor-client privilege, including the privilege that attaches to confidential communication between client and lawyer for the purpose of obtaining and giving legal advice. Thus, a reasonable corollary is that any of those persons can seek, or give information to obtain legal advice where it is essential to do so within the scope of their employment duties.
114Thus, it can be said with certainty that where it is essential for an officer of the ministry, including ordinary staff, to seek legal advice in advancing the minister’s interest, that person is covered under the cloak of “client” and enjoys the panoply of rights a minister enjoys. If the officer or employee is required to convey information, to facilitate instructing the solicitor, to help in explaining matters that are central to the issue at hand or to help in giving instruction, that person is essential to the formation of the solicitor-client relation.
115Therefore, that officer or employee has no less status than a minister or deputy head in the solicitor-client relation. Therefore, absent proof to the contrary, there is a presumption that the communication to the solicitor had been made in confidence and subject to legal advice privilege protection. To hold otherwise, may create numerous dysfunctional departments in an already complex governmental scheme.
116It should not be overlooked that the substantive rule of legal advice privilege applies to all clients. It applies to the same extent, whether the client is an individual, a corporation, a union, a multi-national organization or the government as amorphous or complex as the last two may be. Similarly, the substantive rule of legal advice privilege applies to any lawyer whether the lawyer is a sole practitioner, practices in a firm, “in-house” or is a salaried government solicitor. (Buffalo v. Canada (Minister of Indian Affairs and Northern Development) (1995), 1995 CanLII 3602 (FCA), 184 N.R. 139 (F.C.A.), at 143, per MacGuigan J.A., and Lac La Ronge Indian Band, supra, at para. 26).
117The majority is mindful that there is the argument that casting the “client” net so broadly could include just about every civil servant. In so doing, that gives too much protection to government. As a result, the very purpose of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, could be frustrated or undermined.
118That argument can be seen to challenge the propriety of tribunals and courts. It cannot be said that tribunals or courts apply less rigorous enquiries to “privilege-assertions” made by governmental entities. Besides, a mere assertion of privilege of any kind does not make it so. There are traditional tests that act as safety valves. The tests must be met. The onus still rests on the government to show privilege exists. The criteria for privilege are well established. Therefore, if there is no such concern with respect to a multi-national organisation, there should be none for government.
Who is Ms Ryan?
119Having considered the facts and the applicable law, for the purpose of this motion, the majority finds that Ms Ryan, as the acting manager of policy, is an official. As such, she falls within the rubric of a “client” in the scheme of solicitor-client relations. Further, the majority is satisfied that the document described at Item 1 of Tab D is protected by the sword and shield of legal advice privilege.
120The following are the undisputed facts:
(a) Ms Ryan is a senior policy person with the Ministry of Health: she is not a lawyer;
(b) Ms Ryan drafted the Briefing Notes for the Minister and sent it to Ms Montrose for her input;
(c) Ms Montrose is a lawyer who had provided legal advice to the Ministry of Health on the de-listing of sex re-assignment surgery;
(d) De-listing of sex re-assignment surgery was the subject-matter of the impugned communication and the proposed legislation on which the Ministry sought legal advice.
121In this case, communication flowed among several government-actors, including Ms Ryan, who is a policy person, to a salaried government solicitor, Ms Montrose. It is clear from the disclosed portions of these documents that the subject-matter of the interoffice memorandum is about de-listing of sex re-assignment: the subject-matter in this case. By inference, it flowed from Ms Ryan, the author, to Ms Montrose and then down to Ms Fitzpatrick, Ms Wilson, a lawyer in Ms Montrose’s branch and Ms Ryan.
122Legal advice is not circumscribed to communication made by a lawyer alone. “Communication” envelops what the client says and what the lawyer says: oral or written. More often than not, it is the client who initiates the communication. It is irrelevant that Ms Ryan is not a lawyer: she is a client. More often than not, the client is not a lawyer. As of necessity, communication must include ascertaining or investigating facts upon which the advice will be given: (College of Physicians of British Columbia, supra, at para. 40). The client often provides those facts.
123In this case, Ms Ryan did just that. In the Respondent’s words, “the severed portions of the documents in question provide a lengthy discussion of the immediate and longer-term legal implications of de-listing sex-reassignment surgery.” Implicitly, Ms Montrose added her insight, opinion, analysis acumen or input, of whatever scope to Ms Ryan’s writing. Having done so, she felt confident that she could “sign-off” on it. Giving advice is not limited to writing long or short letters or actually writing a text. In many cases, it can be as simple as a mere approval or disapproval of a client’s position or proposition.
124More expansively, it is indicative that Ms Montrose knew the final product was to give advice to the minister. It is not necessary for Ms Montrose to re-write the text for it to be solicitor-client communication. Quære: If a client consults with a lawyer and during the entire period the lawyer says no more than: “ I agree with your decision – go ahead and do it”, is that communication not shielded under the legal advice privilege cloak? Also, if a client writes a ten-page document to a lawyer and asks for her or his opinion and the lawyer writes back and say: “this would be dangerous – do not do it”, must the lawyer re-write the text for privilege to attach? The majority knows of no such requirements in the law.
125There is the cogent proposition put forward by Hogg and Monahan from which the majority reasons analogously. It is reproduced below:
A document whose particular contents are innocuous may be protected from disclosure by public interest immunity if it belongs to a class of documents that ought to be kept a secret. (Liability of the Crown at p. 95).
The majority of the panel recognises that those scholars were commenting on public interest immunity. However, the majority adopts that proposition.
126Applying that view to legal advice privilege, that assertion is stronger and more apt for at least three reasons. First, legal advice privilege is a sacrosanct, near absolute privilege: public interest immunity is not. The communication is protected. Protection is not qualified by the contents of the communication. Second, legal advice privilege is a class privilege: public interest immunity is not. Third, unlike public interest immunity, there is no balancing of competing public interests in legal advice privilege. Accordingly, where the contents of a document is innocuous, and that document belongs to a “file of documents” concerning a certain matter over which legal advice privilege exists, it enjoys that privilege unless the client discloses or produces it.
127There is no evidence before the Tribunal that the document to which the Respondent referred in Item 1 of Tab D was not made in confidence. In answer to the Tribunal’s question about the protocol followed when a Cabinet Minister requires legal advice or a Briefing Note, in its Supplementary Submissions the Respondent’s counsel submits:
A [m]inister, her staff, or Ministry officials may request legal advice at anytime or stage in the regulatory process. Legal advice may also be provided, without a specific request, on the initiative of counsel. Whatever the situation, legal advice is provided on the understanding that it is given in confidence and will be treated as such. (Paragraph 32).
128On the evidence, one can surmise with a high degree of accuracy, that there had been a copious continuum of communication flowing back and forth among lawyers of the Ministry of Health and Long-Term Care (MOH), the Attorney-General and the Legislative Counsel and key officials at the MOH concerning the passing of Regulation 528/98. That regulation was about the de-listing of gender re-assignment surgery, among other services. Without straying beyond the necessaries of this motion, it is reasonable to conclude that all communications between the lawyers and the Crown servants who were required to work with the lawyers on that subject-matter belongs to the class of legal advice privilege.
129In Lac La Ronge Indian Band, supra, Grotsky, J. states, at para. 8:
The legal advice privilege protects all communication, written or oral, between a solicitor and a client that are directly related to the seeking, formulating or giving of legal advice; it is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communication in which the solicitor tenders advice; it is not confined to telling the client the law and it includes advice as to what should be done in the relevant legal context. (Emphasis added).
Grotsky J.’s comments are instructive and are adopted for guidance.
130It is not contested that the true nature of Ms Ryan’s communication was to provide a continuum of communication about Gender Re-assignment to legal counsel. It is a reasonable inference that she was an essential person in the gathering or relaying of information to Ms Montrose for her to be able to give adequate or accurate advice to the Minister. No doubt, it would be inconvenient and impractical to require Ms Montrose, legal counsel, or the Minister, as the client, to engage in direct communication to preserve confidentiality of communication or to assert legal advice privilege. There is no such requirement in law for a solicitor-client relation to exist.
131In summary, the majority finds that for the purpose of this motion, Ms Ryan is a “client”. The communication that was relayed between Ms Ryan, Ms Montrose, Ms Fitzpatrick, and Ms Wilson were made in confidence and focused on the issue of de-listing of gender re-construction surgery. Alternatively, if Ms Ryan is not a “client” she is a servant of the Crown or the Minister. Therefore, her communication to Ms Montrose on the issue of de-listing gender reconstruction surgery falls within legal advice privilege.
132The majority is of the view that the document identified as Item 1 at Tab D is part of the file of documents relating to the gender re-assignment issue. Therefore, the majority finds that legal advice privilege attaches to Item 1 at Tab D of the impugned document. The majority is not persuaded, in the circumstances of this motion, that infringing that privilege is justified. It should not be produced to the parties.
133But Item 9 of Tab D poses different concerns and considerations. There are portions in it that are in other documents that the Tribunal finds attach legal advice privilege. It would be antithetical or disingenuous or both, to protect information in one document and then order disclosure of the same information that is contained in another document without the clearest evidence that the client had expressly or implicitly waived privilege. More than likely, this could cause irreparable damage, and undermine the efforts to protect legal advice privilege communication.
134It was not clear to the majority who composed that document. It is not clear for whom or to whom the communication was intended. It is not clear from the face of the severed material that it was intended to be confidential. It is not clear, on the face of the document, that it is part of the continuum of communication between the lawyers and Ministry of Health employees who might have been involved in this issue.
135In its letter of enquiry, the Tribunal enquired about the authorship of the said document. The Respondent’s response to the Tribunal’s question, verbatim, is as follows:
This document is a copy of a draft document prepared for the potential use of the Minister of Health to answer questions in the Legislature. (Emphasis added).
The non-privileged section of this document describes, as of August 13, 1998, the OHIP funding status of sex re-assignment surgery. Ms Ryan’s name appears on the routing sheet for the document as the official who approved the document; this does not necessarily mean that she authored the document. The contact name on the note is that of the Assistant Deputy Minister of Health Insurance and Related Programs. (Emphasis added).
The severed portion of the document contains a summary of the legal advice provided by the Legal Services Branch of the potential legal implications that might result from the de-listing of sex re-assignment surgery. It is also clear from the face of the severed material that it was intended to remain confidential.
While these Ministry officials (who are not lawyers) may have compiled this note, the severed portion of this note refers to and summarizes Document 10, a legal opinion from the Legal Services Branch of the Ministry regarding the legal implications of the de-listing of sex re-assignment surgery. (Emphasis added).
The severed portion of Document 9 is legal advice protected by solicitor and client privilege. Where Ministry officials transmit or comment on information that is obtained from privileged communication with counsel, that information is protected by solicitor and client privilege and is not subject to production.
136The above reply does not answer the Tribunal’s questions. Simply stated, it is unhelpful. While the other parties do not bear the onus to prove that legal advice privilege exists, none challenged the assertions of the Respondent’s counsel. It is unhelpful to the majority of the panel for counsel to adduce a paucity of evidence on an issue as important as legal advice privilege, and then, when asked specifically to be helpful, provides inadequate information. This is troubling in the light of the significance of legal advice privilege in the scheme of the administration of justice, and, in this motion.
137The majority carefully realizes that it cannot simply order the document produced because the Respondent adduced a paucity of evidence and lack of authority, or because of his unhelpfulness. For, the Tribunal too has a duty, to protect privilege where it is seen to exist. That involves acting judiciously where legal advice privilege is asserted and found to ensure such documents are not produced summarily.
138In the circumstances of this motion, the majority has decided, in the interest of fairness, to scan the document in question. The aim is to expunge any part or parts of it that are contained in other documents that the Tribunal has ruled attaches legal advice privilege. The rationale is, there is no evidence that the client has expressly or implicitly waived that privilege. Consistent with the foregoing approach, if the Respondent has disclosed any of the information contained in this documents, those portions will be ordered produced to all the Commission and the Complainants.
139The majority does not do so lightly. It realizes that parsing the content of a document, maintaining privilege on parts of it or ordering the production of specific other parts where the entire content is about the same subject-matter causes concerns. It has all the dangerous signals that could force a client to be guarded about what matters ought to be divulged to his or her lawyer. There is no question that inhibiting free and frank discussion mars confidentiality and ultimately gives way to inadequate or ineffectual legal advice. That would cut at the very aorta of legal advice privilege and would render it nugatory.
140The majority has scanned and compared all the documents with a fine-tooth comb. This was a rather tedious and unnecessary exercise. The majority found only a few sentences in it that are not contained in other documents the Tribunal finds privilege attaches. In the circumstance, and preferring to err on the side of caution, the majority concludes that it will not order the Respondent to produce Item 9 of Tab D.
What about Dr. Dickie?
141As noted earlier, the Commission argues that Dr. Dickie was present at a meeting and his presence waived any privilege that existed in Item 1 at Tab D. This again was a fleeting comment that was not supported by evidence.
142In response to the Tribunal’s question about whether Dr. Dickie attended a meeting, the Respondent’s counsel replied that after making enquiries, there is no record or other evidence that the proposed meeting took place between the MOH and Dr. Dickie. As noted earlier, the Tribunal has not received any rebuttal to the Respondent’s Supplementary Submissions from the Commission’s counsel nor the three Complainants’ counsel, or Ms Hogan.
143The Tribunal accepts the Respondent’s counsel reply on this question. Therefore, for the purpose of this motion, the Tribunal does not consider the issue of waiver of privilege vis-à-vis Dr. Dickie to be relevant.
ORDER
144For the reasons given above the majority orders as follows:
The Respondent must produce the following impugned documents to all the parties within five business days upon receipt of this decision:
(i) the document identified as 17B of Schedule “D” and
(ii) the “sender and recipient information” and;
(iii) the title of the reference of the document at Item 9 of Tab E.
Dated at Toronto, this 12th day of August, 2003.
“Patricia E. DeGuire”
Patricia E. DeGuire
Vice-Chair
“Ajit Jain”
Ajit Jain
Member
Ross Hendriks, Vice-Chair (dissenting in part):
145This motion raises the following issue: whether and to what extent solicitor and client privilege can protect confidential information given to a Cabinet Minister in a Briefing Note, and information “prepared for the potential use of the Minister of Health to answer questions in the Legislature” in a House Note, from disclosure, when the author of the information is not a lawyer, the author of the information is not essential to the solicitor and client relationship, and the documents in question are not legal advice nor a legal opinion, but have some legal issues and conclusions imbedded within them. I refer specifically to Documents No. 1 and 9 under Schedule “D” of the “Severed Cabinet Documents”, which the Tribunal has now inspected.
146While my colleagues’ Reasons for declining to order the production of these documents are thoughtful and logical, nevertheless, I respectfully dissent in part. I find that Documents No. 1 and 9 of Schedule “D” ought to be produced in their entirety.
147Document No. 1 is a Briefing Note to Minister Witmer, prepared by Pauline Ryan, Acting Manager, Provider Payments and Policy, Provider Services Branch, Ministry of Health, entitled, “Notes for Minister Elizabeth Witmers’s Briefing Regarding Sex-Gender Reassignment Surgery.” The Respondent has voluntarily produced the first half of this Briefing Note (the “Briefing Note”) to the other parties, but has claimed solicitor and client privilege on the last half of it.
148Document No. 9 consists of two separate documents, both House Notes. The Respondent has voluntarily produced the first document in its entirety (the “First House Note”), and the first page of the second document, but has claimed solicitor and client privilege on the last two pages of it (the “Second House Note”). The author of the first House Note is Mary Catherine Lindberg, ADM, Health Insurance and Related Programs. The Second House Note indicates on its face that it was “Approved By – Manager: Pauline Ryan.” There are no other indications of authorship on the face of these documents.
149Counsel for the Respondent did not provide the Tribunal with any additional information that was helpful regarding the authorship of these House Notes either in his oral submissions before the Tribunal or in his catalogue of documents under Tab D that correspond to the “Severed Cabinet Documents” as described in paragraph 5 of this Interim Decision.
150As set out in paragraph 103 of this Interim Decision, my colleagues therefore directed our Registrar to write to counsel for the Respondent and make further inquiries concerning the authorship of these House Notes. Counsel for the Respondent replied only that they were “a copy of a draft document prepared for the potential use of the Minister of Health to answer questions in the Legislature”, and in terms of Ms Ryan’s role in their preparation, that “these Ministry officials (who are not lawyers) may have compiled this note.” Based on this limited information, I make the factual finding that the Second House Note was prepared by Ms Ryan or other unidentified, non-legal staff, and was then approved by Ms Ryan.
151The key question to consider in examining legal advice privilege is “whether the communication is made for the purpose of seeking or providing legal advice, opinion or analysis”, as per College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665, [2002] B.C.J. No. 2779.
152The legal issues baldly stated within the Briefing Note and the Second House Note find their genesis in earlier legal opinions, the latter being subject to privilege. Based on the evidence before me, I find that the sharing of information between various non-legal government employees has waived the privilege. I decline to find that Ms Ryan, or other unidentified non-legal staff, is acting in the role of a “client” seeking or obtaining legal advice when writing the Briefing Note or the Second House Note. I also decline to find that Ms Ryan or other unidentified legal staff is an “official” of the Ministry of Health. In the alternative, if Ms Ryan or any of these unidentified non-legal staff are “officials” of the Ministry of Health, my decision would not change, since the Evidence Act is not binding on this Tribunal and I do not share my colleagues’ view of it by way of analogy in any event.
153Based on the evidence before me, neither the Briefing Note nor the Second House Note is a communication prepared by Ms Ryan or other unidentified non-legal staff as a request for a legal opinion or legal advice as a client. Rather, I find that the Briefing Note and the Second House Note are executive summaries of various management issues prepared by her or other unidentified non-legal staff for the Minister. The key legal opinions had already been written by counsel for their clients. Ms Ryan and other unidentified non-legal staff could not have contributed as “clients” to their prior formation by preparing these particular executive summaries of them after they had already been written.
154Although the Legal Services Branch at the Ministry of Health had indicated in a brief e-mail that it had provided “minor amendments” and its “approval” and “sign-off” on the Briefing Note, they did not write it, Ms Ryan did. I decline to find that this e-mail is sufficient to cloak the Briefing Note with solicitor and client privilege, since it was simply an executive summary of various issues, some of which were legal, and the Legal Services Branch was able to communicate with its key clients directly.
155I decline to find that solicitor and client privilege applies to the Second House Note, because, as counsel for the Respondent has stated in para. 29 of his Supplementary Submissions, the Second House Note highlights the conclusions contained in a separate, prior legal opinion prepared by Legal Services, which is document No. 10 under Schedule “D”. Document No. 10 is protected by solicitor and client privilege because it is legal advice. However, the executive summary of it and other issues contained in the Second House Note, as prepared by Ms Ryan or other unidentified non-legal staff is not, because the privilege has been waived.
156I find that Ms Ryan’s function, or the function of other unidentified non-legal staff, as a third party to any solicitor and client communications was not essential to the maintenance or operation of the solicitor and client relationship, in the way that an expert’s function may be. The Legal Services Branch communicates directly with all of its clients, including the Minister, and Ms Ryan’s work, or the work of other unidentified non-legal staff, was not an essential component of the solicitor and client relationship in the preparation of the Briefing Note or the Second House Note. See: General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) p. 321 (C.A.).
157While privilege is a broad concept, it must be tied to evidentiary considerations. The Supreme Court of Canada has specifically rejected the notion that privilege be more properly characterized as a “rule of property” in Solosky v. R, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at 822 and 837. The Respondent’s claim of privilege on the Briefing Note and on the Second House Note flows from a property-based characterization, rather than from the evidence on its face as to the nature of the communications.
158For these reasons, I find that the solicitor and client privilege claimed over the Briefing Note and the Second House Note has been waived. I have considered the importance of withholding production and the interests served by protecting the communications that were intended to be confidential within the Ministry of Health from disclosure against the public interest in the proper administration of justice. As held by the Supreme Court of Canada in a case regarding a claim of privilege over the production of confidential psychiatric notes and records in A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 (“Ryan”), at para. 19, “The common law principles underlying the recognition of privilege from disclosure are simply stated. They proceed from the fundamental proposition that everyone owes a general duty to give evidence related to the matter before the court, so that the truth may be ascertained.”
159The threshold for disclosure of non-privileged documents is low. It is the test of arguable relevance, as per the Ontario Court of Appeal’s decision in Ontario Human Rights Commission v. Dofasco Inc. (2001), 2001 CanLII 2554 (ON CA), 57 O.R. (3d) 693 (C.A.). These documents could be arguably relevant on the question of whether the regulation that de-listed sex reassignment surgery under the Ontario Health Insurance Plan (“OHIP”) is discriminatory, although the issue of admissibility is not before us now.
160Further, the Tribunal is empowered under ss. 5.4 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, (“S.P.P.A..”) and under its Rules of Practice, to make orders requiring disclosure of all relevant documents. I find that these documents meet the Tribunal’s standard test for the disclosure of documents as established by the S.P.P.A. and by our Rules of Practice.
161In the alternative, the Human Rights Code is a quasi-constitutional statute. To extend a broader application of solicitor and client privilege to documents that are evidence of government action, where the government action is the basis of the alleged discrimination, than would normally be afforded to litigation of a purely private nature, conflicts with the analysis of “Charter rights” and “Charter values” made by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 (“Hill”), at paras. 93 to 95. As held by McLachlin J. (as she then was), in Ryan, supra, at para. 23, in reference to Hill, supra, “I am of the view that Cory J.’s comments are equally applicable to the common law of privilege at issue in this case.” Citing Cory J.’s decision in Hill, supra, McLachlin, J. found that there is an important distinction to be made between “those cases in which the constitutionality of government action is challenged, and those in which there are no government action involved.”
162The heart of the matter before us is whether this particular government action, this legislative activity being the subject-matter of both the Briefing Note and the Second House Note, discriminated against the Complainants within the meaning of the Code. These documents are relevant because they concern the pith and substance of the matter at hand.
163For all of these reasons, I would have ordered full production of the Briefing Note and the Second House Note, as set out in the Respondent’s mateials in Documents No. l and 9 of Schedule “D”.
164I concur with my colleagues regarding the documentary production that they have ordered.
Dated at Toronto, this 12th day of August, 2003.
“Mary Ross Hendriks”
Mary Ross Hendriks
Vice-Chair
1 This is a unique phenomenon especially considering that it is in the litigation orb, particularly in Criminal Litigation, that there is the sedulous attempt to protect the liberty, life and security of one accused by the State for action, e.g., for murder. It is within this sphere that the body of case law has been established copiously, about one’s right to legal counsel upon arrest to avoid arbitrary detention. It is within this realm that gave birth to the Brydges’ right.
2 When one considers the birthplace of these traditional doctrinal values, one cannot ignore the fact that in Britain, there is a clear delineation between the functions of a solicitor and a barrister. In fact, a client cannot retain a barrister without the direct help of a solicitor. Logically, if a solicitor cannot resolve the interest of his or her client and the matter must go to court, the barrister must have communication from his client of a confidential nature. That client must be able to have full and frank communication with his or her barrister so that the barrister can make full answer and defence for the client. A barrister was, and still is, just as duty-bound as a solicitor to guard closely and sedulously the confidences of his or her client. It seems that the debate about whether litigation privilege is really solicitor-client privilege is merely semantics and not a functional or utilitarian concern.
3 The Evidence Acts of Alberta, New Brunswick and Prince Edward Island contain similar provisions.