Pritchard v. Ontario Human Rights Commission

Pritchard v. Ontario Human Rights Commission et al.; Attorney General for Ontario, Intervenor*

[Indexed as: Pritchard v. Ontario Human Rights Commission]

63 O.R. (3d) 97 [2003] O.J. No. 215 Docket No. C38105

Court of Appeal for Ontario Finlayson, Charron and Armstrong JJ.A. January 29, 2003

*An appeal of this judgment to the Supreme Court of Canada (Iacobucci, Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.) was dismissed on May 14, 2004 (2004 SCC 31).

Administrative law -- Judicial review -- Solicitor-client privilege -- Legal opinion prepared for Human Rights Commission by its in-house counsel which Commission had before it in making decision not to proceed with complaint protected by solicitor-client privilege -- Solicitor-client privilege not abrogated by s. 10 of Judicial Review Procedure Act -- Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10.

Human rights -- Evidence -- Solicitor-client privilege -- Human Rights Commission deciding pursuant to s. 34(1)(b) of Human Rights Code not to deal with applicant's complaint -- Applicant bringing application for judicial review of that decision -- Applicant seeking production of legal opinion prepared for Commission by its in-house counsel which Commission had before it in making s. 34(1)(b) decision -- Opinion protected by solicitor-client privilege -- Solicitor-client privilege not abrogated by s. 10 of Judicial Review Procedure Act -- Human Rights Code, R.S.O. 1990, c. H.19, s. 34(1)(b) -- Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10.

The applicant filed a human rights complaint alleging that she was subjected to gender discrimination and sexual harassment during her employment. The respondent Ontario Human Rights Commission decided, pursuant to s. 34(1)(b) of the Human Rights Code, not to proceed with the complaint as the applicant had acted in bad faith in filing the claim after signing a release of claims under the Code. The applicant's application for judicial review of that decision was allowed and the matter was remitted to the Commission for redetermination under s. 34 of the Code. The Commission again exercised its discretion under s. 34(1)(b) of the Code not to deal with most of the complaint. The applicant brought a second application for judicial review. In the course of that application, her counsel requested production of various documents, including a legal opinion prepared by the Commission by its in-house counsel. The Commission refused the request for documents. The applicant brought a motion for an order for production of all information which was placed before the Commission for its consideration of her complaint. The motions judge granted the motion, holding that the legal opinion in question was not protected by solicitor-client privilege.

Holding that the Commission is in many ways like the Workers' Compensation Board in the sense that it is not adverse in interest to claimants who come to it seeking to enforce their rights, the motions judge relied on a workers' compensation case in which the New Brunswick Court of Appeal held that legal opinions given in relation to the interpretation of legislation which is germane to a claim before one of the board's tribunals is not privileged as such professional opinions are for the benefit of employers, employees and dependants and not simply for the exclusive use of the Board. The Divisional Court affirmed that decision and expressly approved the application of the argument in the New Brunswick Court of Appeal case. The Commission appealed.

Held, the appeal should be allowed.

Solicitor-client privilege is not merely a rule of evidence; it has evolved into a fundamental civil and legal right. The privilege must remain as close to absolute as possible. The only way that the legal opinion in question in this case could be held not to be protected by solicitor-client privilege was if it was abrogated by statute; if it fell within one of the known common law exceptions to the doctrine; or if the reasoning of the New Brunswick Court of Appeal was adopted to create a new common law exception. Section 10 of the Judicial Review Procedure Act, which provides that when notice of an application for judicial review of a decision has been served on the decision-maker, the decision-maker shall file with the court the record of the proceedings in which the decision was made, has no effect on solicitor-client privilege. If the legislature had intended to abrogate the right of a party to a judicial review application to claim the protection of solicitor-client privilege for a legal opinion, it would have done so in clear and unequivocal terms. There is nothing in s. 10 of the Act which gives any indication that the legislature intended to abrogate solicitor-client privilege.

On a policy basis, it is desirable for statutory decision-makers to engage in internal debates about which of several possible interpretations of their statutory mandates best serve the public interest, and to be able to weigh those interpretations against other considerations, such as the procedures available to them to regulate or enforce different mandates. Statutory decision-makers, who are often persons with technical expertise in a particular area but not lawyers, need confidential legal advice with respect to the interpretation of relevant legislation and other legal issues in order to facilitate candid discussions. Procedural fairness can be achieved without the production of such legal opinions. The ultimate question on any judicial review of the Commission's decision should not be whether the legal opinion it received was correct or not, but whether the decision of the Commission can be upheld. The legal opinion is therefore irrelevant. To hold that legal opinions generated in such circumstances are not cloaked with solicitor-client privilege would be to create an exception which would clearly go against the weight of authority to the present time. Such a change in the law is best left to the legislature.

Privilege was not waived by virtue of the Commission's having produced an earlier opinion of another lawyer given prior to the first application for judicial review. The production of another opinion related to a different decision of the Commission (although a decision of the same character) cannot constitute waiver of the privilege attaching to the second opinion.

Melanson v. New Brunswick (Workers' Compensation Board) (1994), 1994 3850 (NB CA), 146 N.B.R. (2d) 294, 114 D.L.R. (4th) 75, 374 A.P.R. 294 (C.A.) [Leave to appeal to S.C.C. refused (1994), 154 N.B.R. (2d) 320n, 179 N.R. 400n], not folld

Lavallee, Rackel and Heintz v. R., 2002 SCC 61, 4 Alta. L.R. (4th) 1, 2002 SCC 61, 217 Nfld. & P.E.I.R. 183, 216 D.L.R. (4th) 257, 292 N.R. 296, 2002 SCC 61, 651 A.P.R. 183, [2002] 11 W.W.R. 191, 96 C.R.R. (2d) 189, 2002 SCC 61, 167 C.C.C. (3d) 1, 3 C.R. (6th) 209 (sub nom. R. v. Lavallee, Rackel & Heintz), apld

Other cases referred to

Ballard Estate (Re) (1994), 1994 7513 (ON SC), 20 O.R. (3d) 350, 119 D.L.R. (4th) 750, 1994 7513 (ON SC), 33 C.P.C. (3d) 373, 6 E.T.R. (2d) 34 (Gen. Div.) (sub nom. Ontario (Attorney General) v. Ballard Estate); Chersinoff v. Allstate Insurance Co. of Canada (1969), 3 D.L.R. (3d) 560, 1969 700 (BC CA), 7 W.W.R. 750, [1969] I.L.R. 1-285 (B.C.A.C.); Descôteaux v. Mierzwinski, 1982 22 (SCC), [1982] 1 S.C.R. 860, 141 D.L.R. (3d) 592, 1982 22 (SCC), 44 N.R. 462, 1 C.R.R. 318, 70 C.C.C. (2d) 385, 28 C.R. (3d) 289 (sub nom. Montreal Legal Aid Centre v. Mierzwinski, Landry v. Montreal Legal Aid Centre); Jones v. Smith, 1999 674 (SCC), [1999] 1 S.C.R. 455, 62 B.C.L.R. (3d) 209, 169 D.L.R. (4th) 385, 1999 674 (SCC), 236 N.R. 201, [1999] 8 W.W.R. 364, 60 C.R.R. (2d) 46, 132 C.C.C. (3d) 225, 1999 674 (SCC), 22 C.R. (5th) 203; McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario (Inc.), [1992] O.J. No. 5 (Quicklaw) (Gen. Div.); McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario (Inc.), [1992] O.J. No. 303 (Quicklaw) (Gen. Div.); Payne v. Ontario (Human Rights Commission) (2000), 2000 5731 (ON CA), 192 D.L.R. (4th) 315, 2000 C.L.L.C. 230-039, 2000 5731 (ON CA), 2 C.C.E.L. (3d) 171 (Ont. C.A.); Pritchard v. Ontario Human Rights Commission (2001), 148 O.A.C. 260, [2001] O.J. No. 2788 (Quicklaw) (Div. Ct.); R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, 195 D.L.R. (4th) 513, 266 N.R. 275, 80 C.R.R. (2d) 217, 2001 SCC 14, 151 C.C.C. (3d) 321, 40 C.R. (5th) 1; Samoila v. Prudential of America General Insurance Co. (Canada) (2000), 2000 22690 (ON SC), 50 O.R. (3d) 65 (S.C.J.); Slavutych v. Baker (1975), [1976] 1 S.C.R. 254, 1975 5 (SCC), 55 D.L.R. (3d) 224, 4 W.W.R. 620, 38 C.R.N.S. 306, 75 C.L.L.C. 14,263; Solosky v. R. (1979), 1979 9 (SCC), [1980] 1 S.C.R. 821, 1979 9 (SCC), 105 D.L.R. (3d) 745, 30 N.R. 380, 50 C.C.C. (2d) 495, 16 C.R. (3d) 294 (sub nom. Solosky v. R.)

Statutes referred to

Human Rights Code, R.S.O. 1990, c. H.19, ss. 32-36, 34, 37, 39(6)

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10

APPEAL from a judgment of the Divisional Court (Farley, Roy and Sanderson JJ.), [2002] O.J. No. 1169 dismissing an appeal from an order for the production of documents.

Geri Sanson and Mark Hart, for respondent. M. Catherine Osborne, for appellant. Leslie McIntosh, for intervenor.

The judgment of the court was delivered by

[1] ARMSTRONG J.A.: -- The issue raised in this appeal is whether a legal opinion prepared for the Ontario Human Rights Commission (the "Commission") by its in-house counsel is protected by solicitor-client privilege.

[2] The opinion was one of a number of documents that the Commission had before it when pursuant to s. 34(1)(b) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") it decided not to deal with the complaint of the respondent, Colleen Pritchard.

[3] On a motion before MacFarland J., sitting as a motions judge in the Divisional Court, she determined that the opinion was not protected by solicitor-client privilege and in so doing relied upon a judgment of the New Brunswick Court of Appeal in Melanson v. New Brunswick (Workers' Compensation Board) (1994), 1994 3850 (NB CA), 146 N.B.R. (2d) 294, 114 D.L.R. (4th) 75 (C.A.); leave to appeal denied by the Supreme Court of Canada [1994] S.C.C.A. No. 26.

[4] The decision of the motions judge, reported at (2001), 148 O.A.C. 260, [2001] O.J. No. 2788 (Quicklaw) (Div. Ct.), was upheld by a three-judge panel of the Divisional Court.

[5] In my view, the motions judge and the three-judge panel erred in holding that the legal opinion was not cloaked with solicitor-client privilege. I would therefore allow the appeal for the reasons which follow.

The Facts

[6] It would be an understatement to say that the proceedings that give rise to the issue before the court have had a tortured history. Fortunately, it is not necessary for the determination of this appeal to review the proceedings in their entirety. The following is what I consider to be the essential factual context.

[7] Ms. Pritchard was terminated from her employment with Sears Canada Inc. ("Sears") in July 1996. In January 1997, Ms. Pritchard filed a human rights complaint which alleged that she had been subjected to gender discrimination and sexual harassment during her employment with Sears. She also alleged that she had been subjected to reprisal for exercising her rights under the Code.

[8] On January 20, 1998, the Commission decided, pursuant to s. 34(1)(b) of the Code, not to deal with most of Ms. Pritchard's complaint. Section 34(1)(b) of the Code provides that the Commission may, in its discretion, decide not to deal with a complaint, where it appears to the Commission that "the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith." The Commission was of the view that Ms. Pritchard had acted in bad faith because she had signed a release which expressly released claims under the Code. An application for reconsideration pursuant to s. 37 of the Code was dismissed by the Commission.

[9] Ms. Pritchard commenced an application for judicial review of the Commission's refusal to deal with most of her complaint. The Commission did not defend the application for judicial review and, in fact, consented to the order sought by Ms. Pritchard although the order was opposed by Sears. The Divisional Court quashed the decisions of the Commission and remitted the matter back to the Commission for redetermination under s. 34 of the Code. Sears sought leave to appeal to this court which was dismissed.

[10] The complaint was again considered by the Commission pursuant to s. 34, and in what appears to have been a reversal of the position it had taken before the Divisional Court, the Commission again exercised its discretion under s. 34(1)(b) of the Code not to deal with most of Ms. Pritchard's complaint. The motions judge commented that if one compared the earlier decision of the Commission with its later decision, they are strikingly similar.

[11] Ms. Pritchard brought a second application for judicial review before the Divisional Court to strike the Commission's latest decision not to proceed with the complaint. In the course of that application, counsel for Ms. Pritchard wrote to counsel for the Commission and requested production of various documents including a "Legal Opinion that was provided to the Commissioners".

[12] Counsel for the Commission refused the request for documents including the request for production of the legal opinion.

[13] Counsel for Ms. Pritchard brought this motion in the Divisional Court requesting "all information -- both oral and written -- which was placed before the Commission for its consideration of her complaint which resulted in the Commission's decision under s. 34(1)(b) of the Code". The motions judge ordered the Commission to provide all such information including the legal opinion.

[14] Counsel for the Commission requested a three-judge panel of the Divisional Court to review the motions judge's decision, limited to the issue of the production of the legal opinion. In a brief endorsement, the three-judge panel confirmed the order of the motions judge.

[15] This matter now comes before us pursuant to an order of O'Connor A.C.J.O., Goudge and MacPherson JJ.A. granting leave to appeal.

The Decision of the Motions Judge

[16] The issues that were before the motions judge were much broader than the single issue that is presently before us. The motions judge had to deal with a fairly broad-based motion for production. Much of her carefully constructed reasons relates to production generally, apart from the production of the legal opinion.

[17] In concluding that the legal opinion was not protected by solicitor-client privilege and must therefore be produced, the motions judge stated at para. 57:

It seems to me, however, that the Human Rights Commission is in many ways like the Workers' Compensation Board in the sense that it is not adverse in interest to claimants who come to it seeking to enforce their rights. The Human Rights Commission is the guardian, to whom the legislature has entrusted the most important of duties and responsibilities -- the enforcement of human rights. Because there is no adversity, I share the view expressed by the New Brunswick Court of Appeal in Melanson v. Workers' Compensation Board (N.B.) (1994), 1994 3850 (NB CA), 146 N.B.R. (2d) 294; 374 A.P.R. 294; 25 Admin. L.R. (C.A.), at 228 [Admin. L.R.] as follows:

Having indicated my intended disposition of this case, I want to say something with respect to the legal opinions which the W.C.B. refused to produce. As I see it, the opinions are not privileged.

The fundamental premise, the reason for protecting the opinions, is missing. The social legislation creating the Workers' Compensation Board does not purport to make the board a party adverse in interest to claimants. It may be that employers and employees have traditional adversarial interests, but the board ought not to be, or perceive itself to be, a party with interest inimical to them or either of them. It manages an enormous fund and is charged with the unique responsibility of determining the validity of claims coming within the scope of its responsibility. To a certain extent, as authorized by the Legislature of New Brunswick, it may create policy and interpret its own legislation, but it must not meddle in the claims procedure when that has been given over to specially created bodies established by by-laws. The review committee and the appeals board must be permitted to function independently so that they fulfil their raison d'être according to the objectives set forth in the by-laws creating them. Each claim, despite policy, must be considered on its own merits.

Legal opinions given in relation to the interpretation of legislation which is germane to a claim before one of the board's tribunals is [sic] not privileged. Such professional opinions are, in my view, for the benefit of employers, employees, and dependants in the processing of claims by the Workers' Compensation Board, not simply something for the exclusive use of the board. When the W.C.B. is in an adversarial position or has caused the legal opinion to be generated for matters unrelated to claims, a solicitor-client privilege relationship arises vis-à-vis other parties. However, when the legal opinions relate to the interpretation of W.C.B. legislation or the duty or obligation to pay claims, they must not be withheld from the employers, employees or their dependants. Privilege does not attach. When the opinions were requested, litigation was not contemplated nor in hand as between the administrator of the fund and the employer, employee, or a dependant. See Solosky v. Canada, [1980] 1 S.C.R. 821, per Dickson J. at pp. 833-834.

[18] The motions judge then concluded at para. 58:

In my view, there is no basis upon which the Commission here can claim privilege for a legal opinion they admit was before the Commissioners when they considered their decision, which is the subject of this Judicial Review application and it must be produced.

[19] In the reasons of the motions judge there is much discussion of this court's judgment in Payne v. Ontario (Human Rights Commission) (2000), 2000 5731 (ON CA), 192 D.L.R. (4th) 315, 2 C.C.E.L. (3d) 171 (Ont. C.A.). The Payne case involved the obligation of the Commission to make general disclosure of information and did not deal with the particular issue of solicitor-client privilege. It is therefore primarily related to that part of the case at bar which is not under appeal in this court.

Decision of the Full Panel of the Divisional Court

[20] On the review of the motions judge's order, the full panel of the Divisional Court, in a very brief endorsement, affirmed her decision and expressly approved her application of the New Brunswick Court of Appeal's decision in Melanson, supra.

Review of the Legal Opinion by the Court

[21] The legal opinion was not produced to MacFarland J. or the three-judge panel for review. Before us, there was some initial disagreement between counsel for the Commission and counsel for Ms. Pritchard concerning whether the opinion should be produced for review by the court. Counsel for Ms. Pritchard submitted in her factum that there was no evidence as to the nature of the contents of the document nor as to any expectation of confidentiality. Counsel for Ms. Pritchard also submitted that the court should only review the document where the party asserting the privilege has filed an affidavit which sets out a prima facie case of privilege and where the party seeking production is the one who has made the request of the court to review it. Since neither of these circumstances obtained the document ought not to be reviewed by the court. Counsel for the Commission submitted in her factum that the court should review the document. Counsel for the Attorney General took the position that it is only advisable for the court to review the document in question if there is a dispute as to whether it is a legal opinion.

[22] On the hearing of the appeal, all counsel agreed that we should review the document and so we did. After we reviewed the document, the president of the panel advised counsel that the document was indeed a legal opinion related to the case and that it did not contain extraneous facts that were not included in the case analysis prepared by the Commission and produced to the parties. In light of my conclusion on this appeal, I would order that the copies of the legal opinion filed with the court are to be sealed.

The Doctrine of Solicitor-Client Privilege

[23] The doctrine of solicitor-client privilege has been one of the cornerstones of the English common law for centuries. Although historically it was regarded as no more than a rule of evidence, it has developed into a much broader concept that protects communications between a client and his or her lawyer in a wide range of circumstances.

[24] There is a helpful analysis of the rationale and development of the doctrine in the judgment of the Supreme Court of Canada in Solosky v. R. (1979), 1979 9 (SCC), [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745. In that case, Dickson J. (as he then was) provided the following commentary at pp. 833-36 S.C.R.:

As I have indicated, the main ground upon which the appellant rests his case is solicitor-client privilege. The concept of privileged communications between a solicitor and his client has long been recognized as fundamental to the due administration of justice. As Jackett C.J. aptly stated in Re Director of Investigation and Research and Shell Canada Ltd. (1975), 1975 2217 (FCA), 22 C.C.C. (2d) 70 at pp. 78-9:

. . . the protection, civil and criminal, afforded to the individual by our law is dependent upon his having the aid and guidance of those skilled in the law untrammelled by any apprehension that the full and frank disclosure by him of all his facts and thoughts to his legal advisor might somehow become available to third persons so as to be used against him.

The history of the privilege can be traced to the reign of Elizabeth I (see Berd v. Lovelace (1577), 21 E.R. 33, and Dennis v. Codrington (1580), 21 E.R. 53). It stemmed from respect for the 'oath and honour' of the lawyer, duty-bound to guard closely the secrets of his client, and was restricted in operation to an exemption from testimonial compulsion. Thereafter, in stages, privilege was extended to include communications exchanged during other litigation, those made in contemplation of litigation, and finally, any consultation for legal advice, whether litigious or not. The classic statement of the policy grounding the privilege was given by Brougham L.C. in Greenough v. Gaskell (1833), 39 E.R. 618, at p. 620:

The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection (though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers).

But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case.

The rationale was put this way by Jessel M.R. in Anderson v. Bank of British Columbia (1876), 2 Ch. 644, at p. 649:

The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have resource to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.

Wigmore [8 Wigmore, Evidence (McNaughton revision) (1961) para. 2292] framed the modern principle of privilege for solicitor-client communications, as follows:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.

There are exceptions to the privilege. The privilege does not apply to communications in which legal advice is neither sought nor offered, that is to say, where the lawyer is not contacted in his professional capacity. Also, where the communication is not intended to be confidential, privilege will not attach, O'Shea v. Woods, [1891] P. 286 at p. 289. More significantly, if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant. The classic case is R. v. Cox and Railton (1884), 14 Q.B.D. 153, in which Stephen J. had this to say (p. 167): "A communication in furtherance of a criminal purpose does not 'come in the ordinary scope of professional employment'."

Recent case law has taken the traditional doctrine of privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court room. The courts, unwilling to so restrict the concept, have extended its application well beyond those limits.

(Emphasis added)

[25] Dickson J. in Solosky concluded at p. 839 S.C.R. that solicitor-client privilege had evolved into a "fundamental civil and legal right". In R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, 195 D.L.R. (4th) 513 at para. 2, Major J. made a similar observation when he described solicitor-client privilege as "fundamental to the justice system in Canada".

[26] There is a useful formulation of the modern doctrine of solicitor-client privilege by Lamer J. (as he then was) in Descôteaux v. Mierzwinski, 1982 22 (SCC), [1982] 1 S.C.R. 860, 141 D.L.R. (3d) 592, at p. 875 S.C.R. that was reaffirmed recently by Arbour J. in Lavallee, Rackel and Heintz v. R., 2002 SCC 61, 216 D.L.R. (4th) 257:

It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could, in my view, be stated as follows:

1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.

2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

[27] In Lavallee, Arbour J. emphasized in very strong language the nearly absolute nature of the doctrine of solicitor-client privilege. At para. 36, she said:

Indeed solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. Accordingly, this Court is compelled in my view to adopt stringent norms to ensure its protection.

[28] While Lavallee and other cases refer to solicitor-client privilege as being "as close to absolute as possible" there are exceptions. As discussed by Dickson J. in Solosky, supra, if a client seeks legal advice for the purpose of conducting some criminal activity, no privilege attaches to such communication. Another exception was articulated in Jones v. Smith, 1999 674 (SCC), [1999] 1 S.C.R. 455, 169 D.L.R. (4th) 385, when the court held that where public safety is at stake, the privilege may be abrogated but only if there is a clear and imminent risk of serious bodily harm or death to an identifiable person or group. In McClure, the court held that, in limited circumstances where there is a genuine risk of a wrongful conviction, the privilege may yield to allow an accused to make full answer and defence. Also, of course, the privilege may be abrogated by statute. There are other exceptions referred to in Solosky, supra.

The Main Positions of the Parties on this Appeal

[29] I do not propose to set out in full the positions of each of the parties. What follows are the principal arguments which were advanced on behalf of each of them.

[30] Counsel for the Commission argued that the privilege attaches equally to communications with external legal counsel and in-house legal counsel. She further argued that the privilege applies equally to all clients, without regard to whether the client is an individual, corporation or governmental body.

[31] Counsel for the Commission further submitted that the New Brunswick Court of Appeal decision in Melanson, supra, was distinguishable from the case at bar in that the legal opinion ordered to be produced in that case was necessary in order to permit the affected party to know the case she had to meet. In the alternative, counsel submitted that the Melanson reasons in respect of solicitor-client privilege were obiter.

[32] The Commission also relied upon the doctrine of deliberative secrecy to support the withholding of the legal opinion. Finally, the Commission submitted that if solicitor-client privilege did not apply, then the "Wigmore criteria" for determining privilege on a case-by-case basis adopted by the Supreme Court of Canada in Slavutych v. Baker (1975), 1975 5 (SCC), [1976] 1 S.C.R. 254, 55 D.L.R. (3d) 224, at pp. 260-61 S.C.R. were satisfied and therefore served to protect the legal opinion from production.

[33] Counsel for the Attorney General supported the Commission. She submitted that the Melanson reasons on the production of a legal opinion were obiter or, alternatively, represented a departure from the weight of previous authorities. She also argued that the New Brunswick Court of Appeal's comments to the effect that privilege attaches only when a public board is in an adversarial position vis-à-vis the party seeking the opinion are wrong and that the Supreme Court's judgment in Solosky does not support that conclusion.

[34] Counsel for the Attorney General also argued that there are valid policy reasons why solicitor-client privilege ought to attach in the circumstances here even where there is no adversarial context. She also pointed out that there is nothing in the Code or the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, requiring production of a legal opinion prepared for the Commissioners.

[35] Counsel for Ms. Pritchard argued inter alia that the legal opinion was part of the record before the Commissioners and was required to be produced in accordance with s. 10 of the Judicial Review Procedure Act. She relied upon the judgment of the courts below and in particular on the Melanson judgment to support her position that there was no privilege attaching to the opinion.

[36] Counsel for Ms. Pritchard submitted in the alternative that if the court was of the view that solicitor-client privilege applied, then it had been waived by the Commission. This submission was based on the fact that before the first judicial review application, the Commission had produced a legal opinion of another staff lawyer that had commented directly on the first decision that the Commission had made not to investigate Ms. Pritchard's complaint.

Does the Doctrine of Solicitor-Client Privilege Apply in this Case?

[37] There is no doubt that the document which has been described throughout as a legal opinion is indeed a legal opinion provided by staff counsel to the Commission. In my view, the only way that any court could hold that the legal opinion is not cloaked with solicitor-client privilege is if it is abrogated by statute; or it falls within one of the known common law exceptions to the doctrine; or if the reasoning of the New Brunswick Court of Appeal in Melanson is adopted to create a new common law exception.

[38] As indicated above, counsel for Ms. Pritchard relied upon s. 10 of the Judicial Review Procedure Act, which provides:

10. When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

Counsel submitted that the language of s. 10 is mandatory and therefore there can be no expectation of confidentiality for any aspect of the record. From this she reasoned that the doctrine of solicitor-client privilege is not available in respect of any part of the record of the proceedings before the Commission including a legal opinion. I disagree.

[39] If the legislature had intended to abrogate the right of a party to a judicial review application to claim the protection of solicitor-client privilege for a legal opinion, it would have done so in clear and unequivocal terms. There is nothing in s. 10 of the Judicial Review Procedure Act which gives any indication that the legislature intended to abrogate solicitor-client privilege.

[40] During the hearing of this appeal, reference was made to s. 39(6) of the Code which provides:

39(6) A member of the Board of Inquiry hearing a complaint must not have taken part in any investigation or consideration of the subject-matter of the inquiry before the hearing and shall not communicate directly or indirectly in relation to the subject-matter of the inquiry with any person or with any party or any party's representative except upon notice to and opportunity for all parties to participate, but the board may seek legal advice from an adviser independent of the parties and in such case the nature of the advice shall be made known to the parties in order that they may make submissions as to the law.

(Emphasis added)

It is important to note that s. 39(6) deals with the procedure that is to be followed once a matter is referred to a board of inquiry (now called the "Tribunal"). Under the Code, the Commission acts as an impartial investigator pursuant to ss. 32 to 36. Once the matter is referred to a board of inquiry, the Commission is a party to the proceedings before the board and has carriage of the complaint.

[41] Counsel for the Attorney General took comfort from the above language and submitted that the section did not require the production of a legal opinion but only the nature of the legal advice received. She then submitted that there was no other similar section of the Code which expressly required the production of a legal opinion provided to the Commissioner.

[42] Counsel for Ms. Pritchard submitted that s. 39(6) of the Code, by analogy, supports production of the legal opinion at the Commission (investigative) stage.

[43] In my view, s. 39(6) of the Code is not directly relevant. However, it is an illustration that where the legislature intends to abrogate or abridge the right of a person to claim the protection of solicitor-client privilege, it does so in express language.

[44] Ms. Pritchard quite properly relied on the judgments below and on the Melanson case in the New Brunswick Court of Appeal. I turn now to consider that case. I think it would be helpful to provide a brief summary of the facts in Melanson. Mr. Melanson had a heart attack while at work. His widow claimed benefits under the Workers' Compensation Act, R.S.N.B. 1973, c. W-13. Her initial claim was denied but a review committee held that her husband died during the course of his employment and allowed her appeal. However, for some reason, not readily apparent from the case report, the committee did not communicate its decision to Mrs. Melanson. The Chair of the Workers' Compensation Board then referred the matter to counsel. Counsel retained a physician who concluded, after reviewing the file, that Mr. Melanson's death was unrelated to his employment. Counsel then provided an opinion that the medical report constituted new evidence. The Chair of the Board forwarded the medical report together with the legal opinion to the review committee, which proceeded to reverse its decision. Mrs. Melanson, having been informed this time of the committee's decision, exercised her right of appeal. There were a number of issues in the appeal. Suffice it to say that during the course of these proceedings, her counsel pursued and obtained with the assistance of the court both the medical opinion and the legal opinion that had not previously been provided to her.

[45] Counsel for the Commission and for the Attorney General invited the court to distinguish the Melanson case on its facts or to find that the court's comments in regard to solicitor-client privilege are obiter.

[46] While counsel may be correct in noting that the comments of the court in Melanson on the question of solicitor-client privilege were incidental to the question before the court and hence obiter, the Divisional court's adoption of its reasoning in deciding this case certainly was not. I am not prepared therefore to disregard this decision on that basis.

[47] I agree that the Melanson case is distinguishable on its facts from the case at bar. That said, I come to a different legal conclusion than the court in Melanson and in the courts below irrespective of the differing factual context of the two cases.

[48] Central to the motions judge's adoption of the reasoning in Melanson is her conclusion that the Commission is not adverse in interest to Ms. Pritchard. In Melanson, the court's "fundamental premise" was that the Workers' Compensation Board is not adverse in interest to its claimants. From that "fundamental premise", the court in Melanson concluded that privilege did not attach.

[49] While I readily accept in the case at bar that the Commission is not adverse in interest to Ms. Pritchard, I cannot accept that this so called "fundamental premise" leads to the conclusion reached by the New Brunswick Court of Appeal and by the courts below.

[50] In my view, there is nothing in any of the authorities of either this court or the Supreme Court of Canada which could lead to such a conclusion. I note again the comments of Dickson J. in Solosky, supra, when speaking of the expansion of the doctrine of solicitor-client privilege, he said that it included "any consultation for legal advice whether litigious or not".

[51] In Melanson, the New Brunswick Court of Appeal articulated a policy position that professional opinions germane to claims before the Workers' Compensation Board are for the benefit of employees, employers and dependants in the processing of such claims and therefore should be produced to such persons. With respect to medical opinions, I agree. However, I disagree with the court's conclusion that legal opinions related to the interpretation of Workers' Compensation Board legislation or to the duty or obligation to pay claims fall into the same category as medical opinions.

[52] With all due respect to the New Brunswick Court of Appeal, I am unable to agree with its decision and I decline to follow it.

[53] Counsel for Ms. Pritchard also submitted that the principles enunciated in Melanson are consistent with a line of cases in the Ontario courts in other contexts which have held that no solicitor-client privilege attaches to a legal opinion where a common interest exists for the parties to share information set out in the legal opinion. Here she cited cases arising in executor/beneficiary, insurer/insured and trade union/union member contexts. I have reviewed the cases she cited and I am not persuaded that they advance the issue in the case at bar. See: Ballard Estate (Re) (1994), 1994 7513 (ON SC), 20 O.R. (3d) 350, 119 D.L.R. (4th) 750 (Gen. Div.); McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario (Inc.), [1992] O.J. No. 5 (Gen. Div.); McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario (Inc.), [1992] O.J. No. 303 (Gen. Div.); Samoila v. Prudential of America General Insurance Co. (Canada) (2000), 2000 22690 (ON SC), 50 O.R. (3d) 65 (S.C.J.); Chersinoff v. Allstate Insurance Co. of Canada (1969), 1969 700 (BC CA), 3 D.L.R. (3d) 560, 67 W.W.R. 750 (B.C.A.C.).

[54] On a policy basis, I find the submission of counsel for the Attorney General in the case at bar persuasive. Counsel submitted that it is desirable for statutory decision-makers to engage in internal debates about which of several possible interpretations of their statutory mandates best serve the public interest, and to be able to weigh those interpretations against other considerations, such as the procedures available to them to regulate or enforce different mandates. Statutory decision-makers, who are often persons with technical expertise in a particular area but not lawyers, need confidential legal advice with respect to the interpretation of relevant legislation and other legal issues in order to facilitate candid discussions. Further, it is my view that procedural fairness can be achieved without the production of such legal opinions. The ultimate question on any judicial review of the Commission's decision should not be whether the legal opinion it received was correct or not, but whether the decision of the Commission can be upheld. The legal opinion is therefore irrelevant.

[55] In my view, if we were to hold that legal opinions generated in such circumstances are not cloaked with solicitor-client privilege, we would be creating an exception which would clearly go against the weight of authority to the present time. I believe such a change in the law is best left to the legislature.

[56] Finally, counsel for Ms. Pritchard submitted that in the event we were to find that solicitor-client privilege attaches to the legal opinion, we should conclude that privilege has been waived by virtue of the Commission's having produced an earlier opinion of another lawyer given prior to the first application for judicial review. I do not agree that the production of another opinion related to a different decision of the Commission (although a decision of the same character), can constitute waiver of the privilege attaching to the second opinion. It is clear that "privilege can only be claimed document by document": see Solosky, supra, at p. 837 S.C.R.

[57] In view of the conclusion I have reached in this case, it is unnecessary to deal with the Commission's submissions in regard to deliberative secrecy and the Wigmore criteria.

Conclusion

[58] In the result, the appeal is allowed, the order of the three-judge panel of the Divisional Court is set aside and the order of the motions judge, only as it relates to the production of the legal opinion, is similarly set aside. The copies of the legal opinion, filed with the court, are to be sealed and placed in the court file.

Costs

[59] This case raises an issue of first impression in Ontario. In the circumstances, I would make no order as to costs.

Appeal allowed.