Court File and Parties
COURT FILE NO.: CV-12-466064 DATE: 20160825 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NATHAN NARUSIS and NATHAN NARUSIS CONSULTING SERVICES INC. Plaintiffs/(Respondents) – and – BULLION MANAGEMENT GROUP INC., BULLION MARKETING SERVICES INC., and NICK MICHAEL BARISHEFF Defendants/(Appellants)
Counsel: Martin Mendelzon, for the Plaintiffs/(Respondents) Jeffrey Kaufman and Nicholas Robar, for the Defendants/(Appellants)
HEARD: June 28, 2016
INTRODUCTION
1This is an appeal from an order of Master Dash. [1] In his decision, the Master:
(1) dismissed the defendant’s motion for security for costs; and,
(2) held that certain e-mails written by the plaintiff to his solicitor and delivered through the server operated by or on behalf of the defendants were subject to solicitor-client privilege and, accordingly, need not be produced.
2The defendants appealed both aspects of the ruling. After the defendants had completed their submissions and counsel for the plaintiff (the responding party) had commenced theirs, a potential resolution to the issue of security for costs appeared. The parties sought instructions and, to their credit, were able to resolve that part of this appeal. The appeal as to security for costs was withdrawn. I will outline the conditions of the withdrawal later in these reasons. At present, I note that the only substantive matter left to be decided is whether there is reason to set aside the decision by which the Master determined that the e-mails are subject to solicitor-client privilege and, thus, should remain confidential.
BACKGROUND
3The defendant, Bullion Management Group Inc. (“Bullion Management”), is a precious metals management company. It provides investors with opportunities to purchase and store gold, silver and platinum bullion through mutual funds and individual bars. The defendant, Bullion Marketing Services Inc., is a wholly-owned subsidiary of Bullion Management. The plaintiff, Nathan Narusis, provided “wholesaling services” to Bullion Management. While working in this capacity, Nathan Narusis required access to e-mail. He was permitted entry to a corporate server and assigned a corporate e-mail account. Nathan Narusis commenced working with Bullion Management in February 2007. According to the Amended Statement of Defence and Counterclaim, effective December 1, 2011, the parties agreed that the services of Nathan Narusis would be provided through the plaintiff, Nathan Narusis Consulting Services Inc. [2] On behalf of Bullion Management, it is said that the corporate e-mail account was assigned to Nathan Narusis for business purposes only. The Appeal Record makes reference to policies to that effect. Nathan Narusis says that, at that time, he was not aware of any policy that governed its use. On January 11, 2011, an “Employee Policy & Procedures Manual” was finalized and distributed. The Policy states that e-mail transmitted through the corporate account is “not guaranteed to be private” and could be subject to inspection and control. The policy required all users to sign an acknowledgement that they understood and would abide by the terms of the Policy. Nathan Narusis did not sign the acknowledgement. In his view, he was not an employee but an independent contractor.
4On September 7, 2012, the defendants terminated the working relationship. Nathan Narusis associates this with his having stood for election to the Board of Directors of Bullion Management. Following the termination, Nathan Narusis launched this action. The plaintiffs are shareholders of the defendants and it is pleaded in the action that the defendants have acted in a manner that is oppressive.
5In discharging their discovery obligations, the defendants searched the corporate e-mail account. Copies of relevant communications were sent to counsel for the defendants so that he could review them. On September 11, 2015, that counsel discovered that some of the e-mails appeared to be communications between Nathan Narusis and one or more lawyers. Counsel immediately stopped reviewing those e-mails. There are seven such e-mails. The court was advised that they remain sealed pending the determination of this appeal.
THE MOTION BEFORE THE MASTER
6On March 24, 2016, Master heard the motions brought by the defendant seeking security for costs and an order that the e-mails were not subject to solicitor-client privilege. Both were dismissed. With respect to the disputed e-mails, the Master identified the test to be applied as:
For a communication to be protected by solicitor-client privilege the communication must be made for the purpose of receiving legal advice and there must be a subjective expectation of confidentiality which is reasonably objective in the circumstances. [3]
7The Master went on to apply the test and concluded:
Notwithstanding the company policy…to which the plaintiff never agreed, I accept the plaintiff subjectively intended that emails to his lawyer, especially those talking about the defendant, would be confidential and, in my view, it was reasonable from an objective perspective to expect that such communication with his lawyers would also be confidential [4].
8In applying the test, the Master made the following findings:
(i) Solicitor-client privilege is a substantive right and a doctrine of fundamental importance to the operation of our legal system. … The privilege must be as close to absolute as possible unless the privilege is waived. … [5]
(ii) [I]t would set a dangerous precedent to circumvent this privilege whenever an individual happens to use his corporate e-mail account to communicate with his lawyer for the purpose of obtaining legal advice… [6];
(iii) While [the Master] appreciate[d] [that] other personal e-mails on a work e-mail account may be disclosed as relevant in the circumstances, [he did] not believe that this goes so far as to breach solicitor-clients communications. It would be especially egregious in this case where:
(A) The policy was put in place four years into [Nathan Narusis’s] relationship with the company…and where, during that time, he used the business account for personal e-mail without complaint…. There is also no evidence that the business e-mail account was ever monitored to ensure compliance.
(B) When the policy was announced, Nathan Narusis did not agree to it or sign the acknowledgement although requested to do so, and where he expressly told the employer that the policy, or at least parts of it, did not apply to him.
(C) Where the [disputed e-mails were] sent in haste, contrary to his usual practice, to communicate with counsel, which he would normally do through his personal computer and where… there was no intention to deliberately use the corporate email account for this purpose or to waive any confidentiality.
(D) Even if the policy applied, [it] simply said that there was “no guarantee” [that e-mails would remain private]… [A]t best, this would show that there would be diminished expectation of privacy but not an extinguishment of it. [7]
(iv) In [the Master’s] view, the plaintiff objectively intended to keep the communication to his lawyer as confidential and, in all the circumstances, [the] intention was objectively reasonable. [8]
THE STANDARD OF REVIEW
9The standard of review of such a decision considers whether the Master made an error of law, exercised his or her discretion on wrong principles (correctness) or misapprehended the evidence (a palpable and overriding error). [9] Where the question is one of mixed fact and law, the standard of review falls somewhere along a “spectrum of particularity”. If the questions are answered by reference to the particular facts, the standard of review tends to be to the palpable and overriding error end of the spectrum. If the answer is more general, if it concerns the identification of a principle of law that has precedential value, the answer would approach the correctness end. [10]
SECURITY FOR COSTS (THE CONDITIONS FOR THE WITHDRAWAL)
10The appeal with respect to the Master’s decision refusing to order security for costs was resolved by agreement. The defendants consent to a withdrawal of the appeal in exchange for the undertaking of Nathan Narusis that he will not transfer, dispose or encumber the share certificate found at Exhibit “C” to his affidavit sworn on March 18, 2016 (a share certificate certifying that Nathan Narusis, the registered holder of 53,847 fully paid and non-assessable Common shares of Bullion Management) until mediation in this proceeding, at which time the defendants are at liberty to seek a further order for security for costs.
ARE THE E-MAILS SUBJECT TO SOLICITOR-CLIENT PRIVILEGE?
11Counsel for the defendants submitted that the Master erred in law. As counsel sees it, the Master incorrectly distinguished between cases dealing with the expectation of privacy and those concerned with recognizing solicitor-client privilege. The test is the same and, when properly applied, should have led the Master to conclude that, in the circumstances, there could be no objectively reasonable expectation that the impugned e-mails would remain confidential.
12In support of this conclusion, counsel for the defendants relied on cases dealing with the protection of privacy but not solicitor-client privilege. One of these cases concerned a failed workplace relationship and e-mails between the parties that contributed to an understanding of its deterioration. The e-mails were sent using a workplace computer. In the end, one of the participants was terminated. He sued for wrongful dismissal and lost. His interaction with his co-worker following the end of their romantic relationship amounted to sexual harassment. The employer had cause to fire him. By his overall conduct, he had invited the issues into the workplace. There was no expectation of privacy in the e-mails. To the contrary, where the nature and content of an e-mail is found to be inappropriate, constituting harassment in any form, the harassment is taking place “in the workplace”. [11]
13A second case relied on by counsel for the defendants also concerned a lawsuit for wrongful dismissal. The plaintiff made a further claim. It was said, on her behalf, that the employer had committed the tort of breach of privacy by accessing a personal e-mail exchange on her e-mail account at work. Other members of the plaintiff’s family, among them her father, worked for the same employer. In the week prior to her dismissal, she engaged in an e-mail exchange with her mother regarding other employment prospects for her father. In referring to this exchange as among the reasons for termination, the employer referred to the father as “the second most important person in the company”. The exchange was discovered when another employee, a daughter of the president, sole director and sole shareholder of the employer was making use of the plaintiff’s computer “to access old payroll tax reports” and found the exchange in the plaintiff’s inbox. She found the computer on and not locked. No password was required. There were no policies regulating the use of computers by employees. Employees were permitted to use their work e-mail accounts for personal reasons. Security was “relaxed”. The privacy of the employee was found not to have been breached. [12]
14Similarly, in yet another case for wrongful dismissal, in an effort to demonstrate that the dismissal was for cause, the employer produced personal e-mails that had been sent and received by the plaintiff, using the employer’s e-mail system. The sheer volume of personal e-mails involved constituted part of the evidence confirming that the employee’s work performance had been poor. The court concluded that, in the absence of any company policy concerning the use of e-mails, the employee had no reasonable expectation of privacy in relation to the e-mails sent and received “using corporate assets”. [13]
15As the Master noted, it is apparent that these cases do not deal with solicitor-client privilege. They consider circumstances where the impugned e-mails provide evidence that addressed the substance of the action: sexual harassment, inducement of another employee to leave and the volume of e-mails as a confirmation of poor performance, all in support of demonstrating cause for dismissal. They do not touch on the conduct of the action and consultation between client and counsel.
16In another case, this one concerning a charge of murder, the court considered the admissibility of notes prepared by the defendant (the alleged murderer). As a result of being advised by a friend that she had been harassed, the defendant was alleged to have sought out the perpetrator, run into him with an automobile and eventually stabbed him. He went to the home of another friend and there, with her advice, prepared notes of what had taken place in order to assist him in recalling the events for the purpose of facilitating his consultations with a lawyer. These notes were seized under search warrant. They were used by the defendant when he spoke to his lawyer during the course of a telephone conversation. The judge noted that the defendant did not try to keep the notes confidential. He left them on the top of a duffel bag in the apartment of the friend. They were not locked away or otherwise kept in a safe place. Others were with the defendant, in the apartment, throughout his conversation with the lawyer. The judge found “looking at the circumstances as a whole” that the notes were not covered by solicitor-client privilege. He went on to find that the notes were the subject of “litigation privilege which is a sub- set of the solicitor/privilege” and ordered that, on that basis, they could not be admitted into evidence. Having put it this way, the judge spent some time explaining the difference between the two. He concluded by pointing out that “the derivative use” of the information contained in the notes by a witness who overheard the admission of the defendant during the telephone discussion with the lawyer was admissible, but was to be tendered without any reference to consultation with the lawyer.
17This case does little to assist Bullion Management and the other defendants (the appellants) in this case. The notes were openly available to anyone who passed by. They were left “on his duffel bag”. The content of the notes was openly discussed on the telephone while others were present. Most importantly, the case calls for an examination of the “circumstances as a whole”. Put differently, this means that, in each case, its individual context must be reviewed and considered. [14] This approach has been confirmed in a case concerning material found on a computer; albeit, like the others reviewed, not one that deals with consultation with counsel leading to the potential application of the principle of solicitor-client privilege.
18A teacher was permitted to use his work computer for incidental personal purposes. He did. He browsed the Internet and stored personal information on his hard drive. While performing maintenance activities, a technician found a hidden folder containing nude and partially-nude photos of a female student. Copies were provided to the police who, without a warrant, reviewed their contents. The teacher was charged with possession of child pornography and unauthorized use of a computer. The Court of Appeal found, and the Supreme Court of Canada agreed, that the rights of the teacher under s. 8 of the Charter of Rights and Freedoms (the right to be secure against unreasonable search and seizure) had been breached. The teacher had an expectation of privacy (although a diminished one) in any personal information on the computer. The Supreme Court of Canada noted that whether that teacher “… had a reasonable expectation of privacy depends on the ‘totality of the circumstances’. The ‘totality of the circumstances’ test is one of substance, not of form. …” [15]
19Ultimately, the Supreme Court of Canada granted the appeal on the basis of its application of s. 24(2) of the Charter which calls for evidence which was illegally obtained not to be admitted where it would bring the administration of justice into disrepute. [16]
20This reliance on the “totality of the circumstances” suggests a particular consideration of the facts of each case and the accompanying idea that, as a question of mixed fact and law, the standard of review would tend to be towards the requirement of a palpable and overriding error. Be that as it may, as we shall see, the determination of the applicable standard of review is not determinative of the issue in this case.
21What about the application of the circumstances of this case to a consideration of the doctrine of solicitor-client privilege as opposed to the more general protection of privacy? “While solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between the client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer...” [17] “Solicitor-client privilege is fundamental to the proper functioning of our legal system… It is in the public interest that this free flow of legal advice be encouraged. Without it access to justice and equality of justice in this country would be severely compromised”: [18]
[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such it will only yield in certain clearly defined circumstances, and does not involve the balancing of interests on a case-by-case basis. [19]
22This demonstrates that the Master did not err when he distinguished solicitor-client privilege from the more general protection of privacy. The law does not recognize one as more important than the other. Rather, they are related but different. One deals with the privacy of the thoughts, values, actions and activities of our day-to-day lives; the other is specific to the processes of the court and the need for clients to be able to speak freely to their solicitors and counsel. “Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality…” [20] For our administration of justice to function, it is essential that lawyers be fully, properly and candidly informed.
23There are cases that confirm the distinction. In Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 44, [21] an employee was terminated. At the time of the dismissal, the employer obtained legal advice. The employment file of the individual who was terminated included the correspondence between the employer and its solicitor. The employee asked for access to the file. The request was denied. A complaint was filed with the Privacy Commissioner who requested delivery of the file. Some documents were delivered but not the correspondence with the solicitors. A claim of solicitor-client privilege was advanced. The Privacy Commissioner took the position that the law required the employer to provide its office with access to solicitor-client privileged documents. Relying on the Personal Information and Electronic Documents Act [22] s, 12(1)(a) and (c), the Privacy Commissioner ordered production of the privileged documents. [23] The employer brought an application for judicial review to challenge the legality of the order of the Privacy Commissioner. The application for judicial review was dismissed, but the Federal Court of Appeal allowed the appeal, set aside the decision of the Federal Court and vacated the Privacy Commissioner’s order for production of the solicitor-client material. The appeal to the Supreme Court of Canada was dismissed. Solicitor-client privilege was upheld even in the face of an order by the Privacy Commission seeking to conduct an investigation as to whether the documents should be produced.
24In Canada (Procureur général) c. Chambre des notaires du Québec, 2016 SCC 20 [24], the Supreme Court of Canada considered a procedure that enabled Federal tax authorities to require any person to provide information or documents for any purpose related to the administration of the Income Tax Act [25]. It was submitted that there was a risk that the information and documents being sought under this authority would, unbeknownst to the clients of the legal advisors who were being asked to produce documents, reveal particulars that were protected by the privilege. Even before this case, the Supreme Court of Canada had held that professional secrecy was a principle of fundamental justice within the meaning of s. 7 of the Charter of Rights and Freedoms. “It is also a civil right of supreme importance in the Canadian justice system. Professional secrecy must thus remain as close to absolute as possible, and the courts must adopt stringent standards to protect it.” [26] A “requirement” under the Income Tax Act was found to constitute a seizure within the meaning of s. 8 of the Charter. [27] The seizures made in the case were found to be unreasonable and contrary to that section. There was inadequate protection for the professional secrecy of notaries and lawyers. [28] Typically, in considering whether a seizure which intruded upon an individual’s reasonable expectation of privacy was itself unreasonable [29], the courts are required to balance the interests at stake: an individual’s privacy interest, on the one hand, and the state’s interest in carrying out a search or seizure on the other. [30] However, where the interest at stake is the professional secrecy of legal advisors, this balancing exercise will not be “particularly helpful”. [31] This reflects the “categorical jurisprudence” that applies “where the records involve communications between solicitor and client”. [32] Solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. [33] The Supreme Court of Canada concluded that “…it would be unacceptable to allow the state to make use of an administrative procedure in order to obtain information that would otherwise be protected by professional secrecy and then allow it to use that information for other purposes simply because Parliament excluded a lawyer’s accounting records from the definition of solicitor-client privilege.” [34]
25Counsel for the defendants argued that the privilege was breached by the nature of their release. In making this submission, reliance was placed on Airst v. Airst, 1998 ONSC 14647. [35] The case makes clear that there was a time when the release by inadvertence was sufficient to breach the privilege. The Master accepted that the e-mails were sent in haste. This was not something that Nathan Narusis would normally do. There was no intention to deliver these e-mails to anyone other than, or in addition to, his lawyers. The case goes on to recognize that our approach to inadvertent release has changed. It notes that, as matters stand, there is no clear rule of easy application to all cases. [36] This was a matrimonial matter. The husband was required to deliver a number of documents to a valuator. He included two letters: one he sent to, and another he received from, his lawyer. They were the subject of a claim of privilege. Both counsel agreed the release had been inadvertent. The content of the letters was relevant. Nonetheless, the court held that the privilege had not been lost. The release of the documents was “entirely inadvertent”. The disclosure was limited in scope and restricted to one individual. It was retained in a capacity that could be “construed as confidential”. There had been no public disclosure of them. They did not bear in any way on the work of the person to whom they had been released. The court found that the equities favoured retaining the privilege. The judge held that release of the solicitor-client material might well be seen, at least in that case, as giving the opposing party an unfair “windfall” advantage. [37]
26As in that case, in this one, the release of the documents was inadvertent. They were released in haste. The disclosure was limited in scope. All that was said of their content was that they were relevant and one of them “contained misrepresentations that were disparaging of one or more of the defendants.” It is hardly novel, where a party is dismissed, or a contract severed, that disparaging comments are communicated to counsel. Such comments are often emotional and could contribute to the sort of windfall that was of concern to the judge in Airst v. Airst. There were only two individuals who saw the e-mails. The first was the President of Bullion Management and the second, its counsel. The President sent the letters to the lawyer who, upon reading them, understood the sensitivity and sealed them pending the motion and this appeal. Thus, there was no public disclosure of them and, given they were sealed, could be construed as remaining confidential. It is true that, unlike this case, in Airst v. Airst, the issue was only discovered after both parties had testified. Nonetheless, to my mind, there is a strong foundation on which the Master could find that, in this case, the privilege has not been lost. He was correct to do so.
27As the Master found, there was no intention to waive the privilege:
In view of the almost absolute nature of the privilege, competing interests are much less relevant, and indeed, as stated by Major J. in McClure, a balancing of interests is not appropriate. Solicitor-client privilege will almost invariably prevail over other interests… It is clear that the privilege is that of a client. It is for the client to waive the privilege, and no one else. Ordinarily, that requires a deliberate, conscious decision on the part of the client. In my view, anything that purports to be a waiver that does not involve a conscious, deliberate decision must be narrowly construed and applied. [38]
28Waiver can be implied where a party has put reliance on the legal advice in issue. [39] Waiver can be deemed but this requires the intentional act that the party makes the legal advice an aspect of his or her case. [40] Neither of these is present here.
29Finally, the Master did not err in his refusal to be bound by the American cases to which he was referred. It is trite to observe that case law from the United States is not binding on Canadian courts. In this case, the treatment of solicitor-client privilege is different there than it is here. American jurisprudence does not place the same level of importance on solicitor-client privilege as that established by the Supreme Court of Canada. While solicitor-client privilege is an important concept, it has been interpreted more narrowly by American courts:
Since the effect of the privilege is to impede the full discovery of the truth, courts frequently say that the attorney-client privilege is to be strictly construed. This is because it is viewed as an exception to the general rule of the Anglo-American law of evidence that any witness with knowledge of the facts may be called to testify about what he or she knows and that the public has a right to every person’s evidence. This general principle of full disclosure leads to a reluctance to suppress the truth, even under a claim of attorney-client privilege. [41]
30In the United States, solicitor-client privilege remains a rule of evidence. It has not become, nor necessarily will it become, the fundamental principle that our law recognizes. The Court of Appeals for the Fourth Circuit has observed:
[T]he [attorney-client] privilege remains an exception to the general duty to disclose. Its benefits are indirect and speculative, its obstruction is plain and concrete. [42]
[T]he attorney-client privilege should be strictly confined within the narrowest possible limits underlying its purpose. [43]
The purpose of attorney-client privilege is to encourage and promote frank and full consultation between a client and legal advisor by removing the fear of compelled disclosure of information. However, the privilege is not without conditions, and we are mindful that it is the privilege, not the duty to disclose that is the exception. Therefore, the privilege ought to be strictly confined within its narrowest possible limits… [44]
31In the present circumstances, the Master did not err when he found, based on the facts as he determined them, that Nathan Narusis had a reasonable expectation of privacy. He had used the computer in respect of personal matters for four years before any policy conditioning or limiting its use for this purpose was put in place. When the policy came into effect (January 11, 2011), Nathan Narusis refused to sign it. The Master noted that Nathan Narusis advised the company that, as he saw it, the policy, at least parts of it, did not apply to him. It was on December 1, 2011 that the parties agreed that the services of Nathan Narusis were to be provided through his corporation, Nathan Narusis Consulting Services Inc. This serves to establish that at the time Nathan Narusis and Bullion Management parted, the former was not an employee of the latter. The policy did not forbid the use of the e-mail account for personal matters. As the Master noted, the policy stated there was “no guarantee” [that e-mails would remain private]. There was no indication that, at any time or in any circumstance, the private e-mails of Nathan Narusis had been viewed, examined, reviewed or inadvertently opened or discovered. The Master did not err when he found that Nathan Narusis had a reasonable expectation of privacy.
32The understanding that the Master did not err is underscored by his recognition that there is a distinction to be drawn when the issue at hand involves solicitor-client privilege. The case law supports what the Master determined. Solicitor-client privilege is not just a rule of evidence, it is a fundamental and substantive principle. The privilege must be as close to absolute as possible. In this case, the equities stand in favour of solicitor-client privilege being maintained despite the inadvertence of their release. Finally, the privilege has not been waived.
33The appeal of the Master’s order insofar as it found that the plaintiffs’ could assert solicitor-client privilege with respect to the e-mails, is dismissed.
34Although a Costs Outline was provided by the plaintiffs, no submissions were made as to costs. If the parties are unable to agree, I will consider written submissions made the following terms:
- On behalf of the plaintiffs, no later than 15 days after the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, excluding any Bill of Costs, Costs Outline or case law that may be referred to.
- On behalf of the defendants, no later than 10 days thereafter. Such submissions are to be no longer than four pages, double-spaced, excluding any Bill of Costs, Costs Outline or case law that may be referred to.
- On behalf of the plaintiffs, in reply if necessary, no later than five days thereafter. Such submissions are to be no longer than two pages, double-spaced.
LEDERER J.
Released: 20160825
Footnotes
[1] Rules of Civil Procedure, at r. 62.01. [2] Statement of Defence and Counterclaim, at para. 14. [3] Reasons for the Decision of the Master, at p. 5. [4] Ibid, at p. 5. [5] Ibid, at p. 7. [6] Ibid, at p. 7. [7] Ibid, at p. 8. [8] Ibid, at p. 9. [9] Zeitoun v. Economical Insurance Group (2008), 2008 ONSC 20996, 91 O.R. (3d) 131, at paras. 40 and 41. [10] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, 211 DLR (4th) 577; [2002] 7 WWR 1; 10 CCLT (3d) 157, at paras. 28 and 36. [11] Menagh v. City of Hamilton 2005 ONSC 36268, at para. 16, appeal to the Court of Appeal dismissed 2007 ONCA 244. [12] TeBaerts v. Penta Builders Group Inc. 2015 BCSC 2008, 2015 B.C.S.C. 2008, at paras. 4, 48 and 123-132. [13] Milsom v. Corporate Computers Inc. 2003 ABQB 296, 2003 A.B.Q.B. 296; [2003] 9 WWR 250; 17 Alta LR (4th) 124, at paras. 1, 2, 29 and 46. [14] R. v. Abeyewardene, [2008] O.J. No. 5749, paras. 1, 6, 7, 8, 12 and 13-18. [15] R. v. Cole 2012 SCC 53, 2012 S.C.C. 53, [2012] 3 S.C.R. 34, 353 DLR (4th) 447; 96 CR (6th) 88, at paras. 4, 5, 6, 8, 9, 39, (referring to R. v. Edwards, 1996 SCC 255, [1996] 1 S.C.R.128, at para. 45), 40, 52 and 86-97. [16] The Charter of Rights and Freedoms s. 24 (2) states: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [17] Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 44, 2008 S.C.C. 44, [2008] 2 S.C.R. 574, 294 DLR (4th) 385; 376 NR 327; 67 CPR (4th) 1; 74 Admin LR (4th) 38, at para. 10, referring to Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at pp. 885-87; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, at paras. 40-47; McClure, at paras. 23-27; Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 26; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32; Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, Juman v. Doucette, 2008 SCC 8, [2008] 1 S.C.R. 157. [18] Ibid, (Blood Tribe), at para. 9. [19] Ibid, (Blood Tribe), at para. 9, according from R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, 2001 S.C.C. 14, at para. 35, quoted with approval in Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, 2002S.C.C. 61, at para. 36. [20] Ibid, (Blood Tribe), at para. 9. [21] Supra, (fn. 17). [22] S.C. 2000, c. 5. [23] The Personal Information and Electronic Documents Act, s. 12(1) states: The Commissioner shall conduct an investigation in respect of a complaint, unless the Commissioner is of the opinion that (a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available; (b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province; or (c) the complaint was not filed within a reasonable period after the day on which the subject matter of the complaint arose. [24] 2016 SCC 20, 2016 S.C.C. 20, 265 A.C.W.S. (3d) 1082. [25] R.S.C. 1985 c. 1 (5th Supp.). [26] Canada (Procureur général) c. Chambre des notaires du Québec, supra, (fn. 24), at para. 5, referring to Lavallee, Rackel & Heintz v. Canada (Attorney General, supra, (fn. 19), at para. 49. Section 7 of the Charter of Rights and Freedoms states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [27] Section 8 of the Charter of Rights and Freedoms states: Everyone has the right to be secure against unreasonable search or seizure. [28] Canada (Procureur général) c. Chambre des notaires du Québec, supra, (fn. 24), at para. 6. [29] Ibid, at para. 27, referring to R. v. Edwards, 1996 SCC 255, [1996] 1 S.C.R. 128, at para. 33; and to Lavallee, Rackel & Heintz v. Canada (Attorney General, supra, (fn. 19), at para. 35. [30] Canada (Procureur général) c. Chambre des notaires du Québec, supra, (fn. 24,) at para. 36. [31] Ibid, at para. 37, referring to Lavallee, Rackel & Heintz v. Canada (Attorney General, supra, (fn. 19), at para. 36. [32] Ibid, at para. 37, referring to Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32, at para. 18. [33] Ibid, at para. 38, referring to Lavallee, Rackel & Heintz v. Canada (Attorney General, supra, (fn. 19), at para. 36. [34] Ibid, at para. 87. [35] 1998 ONSC 14647, [1998] O.J. No. 2615, 37 O.R. (3d) 654, 21 C.P.C. (4th) 146. [36] Ibid, at para. 2. [37] Ibid, at para. 20. [38] Leggat v. Jennings, 2015 ONSC 237; 248 A.C.W.S. (3d) 299; 65 C.P.C.(7th) 410, at paras. 30-31. [39] Ibid, at para. 32. [40] Ibid, at para.44, quoting from Lloyds Bank Canada v. Canada Life Insurance Co. (1991), 47 C.P.C.(2d) 171, at para. 29. [41] Epstein, Edna Selan, The Attorney-Client Privilege and the Work-Product Doctrine, Fourth Edition, at p. 12. [42] Ibid, at p. 14, quoting from National Labor Relations Bd. v. Harvey 349 F.2D 900, 907 (4th Cir. 1965). [43] Ibid, at p. 13, quoting from Walsh v. Northrop Gumman Corp. 165 F.R.D. 16, 18 (E.D.N.Y. 1996). [44] Ibid, at p. 15, quoting from Waste Management, Inc. v. Int’l Surplus Lines Ins. Co., 579 N.E.2d 322, 327, 144 Ill. 2d 178, 161Ill. Dec. 774 (Ill. 1991).