Court File and Parties

COURT FILE NO.: CV-15-00010824-00CL DATE: 2023-12-16

ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST

BETWEEN:

QUADRANGLE GROUP LLC, QCP CW S.A.R.L. and OBELYSK MEDIA INC.

Plaintiffs

– and –

ATTORNEY GENERAL OF CANADA

Defendant

Counsel: Jonathan Lisus and Matthew Law, for Quadrangle Group LLC, QCP CW S.A.R.L. Kris Borg-Olivier, for Obelysk Media Inc. Sanderson Graham and Sanam Goudarzi, for the Defendant

HEARD: December 15, 2023

RULING - SOLICITOR CLIENT PRIVILEGE

OSBORNE J.

[1] The Plaintiffs challenge the assertion of solicitor client privilege over excerpts of nine documents produced by the Defendant, the Attorney General of Canada (“AGC”) in this action.

[2] This action involves the auction by the Government of Canada of wireless spectrum licences and allegations by the Plaintiffs with respect to, among other things, the manner in which the terms of the licences acquired at auction were subsequently amended.

[3] The AGC made production of approximately 13,000 documents in this action. Among those were the documents that are the subject of the challenge today. In each case, the document itself has been produced by the AGC, but portions of each document have been redacted on the basis of solicitor client privilege.

[4] The trial is in its third week. The Plaintiffs’ case is closed. These documents were put to the witness called by the AGC who is currently giving evidence, Mr. Peter Hill. Mr. Hill is under cross-examination by counsel for the Plaintiffs. That examination was stood down for this challenge.

[5] The Plaintiffs assert that there is no basis for the claim of solicitor client privilege and that the redacted portions of the relevant documents should be produced now. The AGC maintains the claim of privilege.

[6] The AGC further asserts that since these documents were produced well before trial, the Plaintiffs had ample opportunity to bring a motion to challenge the claim of privilege if they wished to do so, and having failed to do that, they ought not to be permitted to challenge the claims of privilege now, mid-trial.

[7] The AGC also takes the position that leave is required pursuant to Rule 48.04 of the Rules of Civil Procedure. The Plaintiffs maintain that leave is not required, but in the alternative, leave should be granted.

[8] One of the documents was originally produced by the AGC in full, without redactions. It was relied on by the Plaintiffs in a motion to disqualify Mr. Hill as the representative of the AGC for examination for discovery. The motion record of the Plaintiffs, including the unredacted document, was filed with the Court, in late 2018, and was therefore in the public record.

[9] Some months later, counsel for the AGC wrote to counsel for the Plaintiffs to advise that production of the document without redactions was inadvertent, that there was no intentional waiver of privilege over those portions, and the AGC requested that the document be returned. The Plaintiffs assert that with respect to this document, privilege was waived. The AGC maintains that production of the unredacted version was inadvertent, and that there was no waiver of privilege.

The Documents

[10] The documents at issue (collectively, the “Documents”) are the following which I have described by AGC production number:

a. Document 1: AGC 012647 - Presentation re: Potential Upcoming Spectrum Transfers, dated September 27, 2012;

b. Document 2: AGC 013115 - Draft Deck: Spectrum Transfers, dated October 1, 2012;

c. Document 3: AGC 012650 - Ministers Response to transfer of Spectrum Licences, dated October 2, 2012;

d. Document 4: AGC 013086 - Wireless Industry Landscape (IC Document), dated November 1, 2012;

e. Document 5: AGC 012854 – Email re: Rogers-Shaw Proposed Option Agreement, dated November 14, 2012;

f. Document 6: AGC 013122 - Advice to the Minister on the Transfer of Spectrum Licences, dated December 30, 2012;

g. Document 7: AGC 013121 - Presentation on the Proposed Approaches to Mobile Spectrum Licence Transfers, dated January 1, 2013;

h. Document 8: AGC 013076 - Spectrum Context, dated May 5, 2015; and

i. Document 9: AGC 005249 - draft email to Iain Stewart sent undercover of an email dated November 9, 2012 with “suggested changes”.

Rule 48.04

[11] I will address Rule 48.04 as a preliminary matter.

[12] Rule 48.04(1) provides that subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court. Subrule (2) provides that subrule (1) does not relieve a party from any obligation imposed by a number of specifically enumerated Rules set out in clause 2(b), including (i): Rule 30.07 (disclosure of documents).

[13] Subrule (3) provides that leave of the court is not required for a motion to compel compliance with any obligation imposed by a Rule listed in clause 2(b).

[14] The AGC submits that the Plaintiffs are now bringing a motion to challenge the claims of solicitor client privilege, albeit mid-trial, and leave is required. The Plaintiffs submit that they are not bringing a discovery motion at all, but rather are challenging the assertion of solicitor client privilege as a matter of fairness and trial management, all of which is within the discretion of the trial judge, and that no motion as such is necessary.

[15] The law is clear that a trial judge has broad discretion to conduct a trial in a manner so as to ensure that the trial is fair. This includes, particularly in a complex and lengthy trial like this, the discretion and indeed the obligation to make mid-trial rulings on issues as they arise, including as to production and the admissibility of documents as well as the appropriateness of questions put to witnesses, among many other things.

[16] This is consistent with the role and duty of a trial judge as described by the Supreme Court of Canada in Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., 2004 SCC 18, [2004] 1 S.C.R. 456. In that case, the Supreme Court considered whether to order the production of documents alleged to be covered by an immunity from disclosure, which in Québec civil law is, as observed by the Supreme Court, roughly equivalent to the common law’s litigation privilege.

[17] The municipality in that case objected to the production of the documents and further objected to the ability of the trial court to inspect the documents as part of the determination of the issue. The Supreme Court reiterated the broad discretion and duties of trial judges at para. 47:

We must remember that every day judges must rule on the admissibility of evidence that they must inspect or hear before excluding, and that this duty is an indispensable part of their role in the conduct of civil or criminal trials. Judges understand that they must disregard any evidence that they deem inadmissible and base their judgments solely on the evidence entered into the court record. Seen in this light, the appellant’s argument would have us ask judges not to carry out one of their core functions and the consideration of evidence … In the circumstances, the city is asking the courts to abdicate their traditional role of ruling on the admissibility and relevance of evidence that is always accorded them, with certain exceptions, under the applicable law of evidence in Canada.

[18] I draw further comfort from the similar approach of Dambrot, J. of this Court in Mele v. Thorne Riddell, 1996 CarswellOnt 5221, where, during trial, an issue arose about the net worth of one of the parties. An auditor’s report was put to the witness, upon which the opposing party asked for an order requiring the production of the remainder of the file from which the report had come.

[19] Considering the matter, mid-trial, Dambrot, J. concluded the following, without any requirement that leave be obtained pursuant to Rule 48.04:

Undoubtedly, I have the jurisdiction to order production of evidence which becomes relevant as the result of developments in the course of the trial. Rule 30.04(5), while perhaps not primarily designed for this purpose, authorizes the Court to order production for inspection of documents that are not privileged and that are in the possession, control or power of a party. The Rule does not, itself, place boundaries on the exercise of this discretion to order production in respect of either timing for subject matter.

[20] In my view, the fact that a party did not bring a motion to challenge and assertion of solicitor client privilege prior to trial is not dispositive of the issue. The failure to bring such a motion before trial does not amount to a waiver or forfeiture of the right to challenge that privilege. The trial judge has the discretion to order the production of a document (or a redacted portion of the document) where he or she is satisfied that the document is relevant and that it should be produced and that taking all appropriate factors into account, it would be unfair to have the trial proceed on the merits without such production.

[21] All of this is further consistent with the practice of the Commercial List of this Court which endeavours to be a business court, one of the objectives of which is to determine matters on their merits as expeditiously as possible. The lack of judicial resources and support do not allow for lengthy production and refusals motions prior to trial, at least not without the unfortunate corollary effect of inevitably causing delays in commercial matters of many months in duration. It follows that it is the practice of the commercial bar, and the expectation of the Commercial List, that the parties will cooperate to the greatest extent possible, and where matters need to be adjudicated, that will be done on the most efficient basis available.

[22] That is not the end of the analysis, however, and the trial judge may consider what, if any, other orders should be made if the document is ordered to be produced, again to ensure trial fairness. This may include, in appropriate circumstances, an adjournment of the trial (with or without terms), the possible recalling of a witness and/or other relief including cost consequences (which are almost always a matter to be addressed after trial).

[23] Moreover, Rule 30.04(5) (relied on by the Court in Mele as set out above), is clear that the court may at any time order production for inspection of documents that are not privileged and that are in the possession, control or power of a party. [Emphasis added]. No leave is required, and in my view this Rule applies exactly as it says: at any time. This is also consistent with the general interpretive principle set out in Rule 1.04(1) which provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[24] This approach is further consistent with that taken by the Court in Cromb, et. al., v. Bouwmeester et. al., 2014 ONSC 5318 at paras. 29 – 30. It is also consistent generally with the approach of the Court of Appeal in Iannarella v. Corbett, 2015 ONCA 11 at para. 50, where the Court determined that reliance on Rule 48.04 as authority for refusing to make the order requested (to produce video surveillance) was misplaced.

[25] However, I observe that in that case, the Court of Appeal made that statement in the context of observing, correctly, that the obligation to produce an affidavit of documents including all relevant documents pursuant to Rule 30.03 was mandatory, and that obligation did not end prior to trial, and that Rule 48.04(1) specifically provides that even after a matter is set down for trial, a party is not relieved from its obligation under Rule 30.07.

[26] I pause to observe that there is no issue of relevance here with respect to the Documents; the issue is the validity of the claim of solicitor client privilege.

[27] Accordingly, in my view, the trial judge has the discretion to order the production of a document or portion of a document over which solicitor client privilege is claimed, mid-trial, if he or she is satisfied that the document or relevant portion is not privileged and the fairness can be managed.

[28] Even if Rule 48.04 is applicable here, in my view leave is not required because the present issue is covered by Rule 30.07 and the obligation to disclose documents subsequently discovered, as some of the relevant Documents here apparently were. Other Documents were produced previously and indeed were put to the AGC witness on examination for discovery. However, the obligation to produce relevant documents or redacted portions thereof, whenever they may have been found, continues. It does not end with the examination for discovery process, nor at any other time prior to trial. The substantive issue of whether the claim of privilege is properly maintained is of course another matter.

[29] Finally with respect to Rule 48.04, even if leave is required, I would grant leave in this case. There is, as quite fairly observed by counsel for the AGC, a lack of consistency in the case law as to the test for leave. Some courts have required a “change in circumstances such that a refusal to make an order under [rule] 48.04 would be manifestly unjust”, while others have determined that leave should be granted if the order is necessary “in the interests of justice” even in the absence of a substantial or unexpected change in circumstances. In yet other cases, courts have considered both tests and determined that they need not weigh in on the prevailing approach as the moving party could not meet the bar even under the broader “interest of justice” test: Horani v. Manulife Financial Corporation, 2023 ONCA 51 at paras. 16 – 19.

[30] In Horani, the Court of Appeal was considering whether to allow the plaintiff to amend a pleading after the action was set down for trial, such that Rule 48.04 applied. The Court of Appeal observed at para. 22 that:

Despite the divergence of opinion on the test to be met under Rule 48.04(1), the parties agree that (i) leave to bring a motion to amend a pleading under Rule 48.04(1) is shaped by the requirements of Rule 26.01 and (ii) leave to amend a pleading under Rule 26.01 will be refused if it would result in prejudice that cannot be compensated for by costs or an adjournment. … Briefly put, regardless of which Rule 48.04(1) test is adopted, this appeal must fail if the motion judge properly determined that allowing the appellants’ proposed amendment would result in non-compensable prejudice.

[31] The present issue relates to the production of redacted portions of documents and not the amendment of a pleading. However, in my view, the conceptual approach adopted by the Court of Appeal is equally applicable here: leave under Rule 48.04 is shaped by the requirements of the underlying rule at issue; in this case Rule 30.04(5) discussed above, which provides that the Court may order the production of documents that are not privileged at any time.

[32] Moreover, I am satisfied that the “interests of justice” clearly favour the granting of leave in the circumstances of this case.

[33] This is a complex matter, engaging issues of ministerial discretion, government authority, liability of the Crown, tort and contract. The AGC quite properly made production of relevant documents, including the Documents at issue here. In some cases, neither the date of the Document nor its author was clear on its face. Given that the documents were produced electronically, an analysis of the relevant meta data for some of the Documents revealed the date on which it was created.

[34] However, the author of some of the Documents was not clear until the evidence of Mr. Hill (which is ongoing), was given at trial. In some cases, his evidence was to the effect that he was reasonably certain that the author was one or both of two specific individuals within government. In other cases, he was unable to assist the Court with respect to who the specific author or authors were, beyond confirming that the Documents were produced within and by a certain group: the Telecom Policy Branch.

[35] Mr. Hill is clearly the most knowledgeable and relevant witness on these issues. The Plaintiffs did not have the benefit of directly questioning him about these documents until he began giving his evidence at trial.

[36] While he was originally put forward by the AGC as the representative witness on examination for discovery, he was disqualified by order of Hainey, J. as a result of a conflict of interest in that he was party to a consulting contract with one of the three major telecom companies actively involved in spectrum licencing which is a central issue in this trial.

[37] In his evidence at trial, Mr. Hill has provided context for, and his understanding of, many of the Documents at issue on this motion which in my view was unavailable from any other witness given Mr. Hill’s central role within government and the issues that are the subject of the Documents.

[38] The AGC produced the Documents. It of course has knowledge of what the redacted portions contain, and has had such knowledge throughout. Put simply, the redacted portions at issue are not a surprise to the AGC. Solicitor client privilege is quite properly of profound importance and is interfered with only in exceptional and defined circumstances. However, where a claim of solicitor client privilege is held to be invalid, it follows that the documents or the relevant redacted portions are properly producible.

[39] The AGC was unable to articulate any prejudice to its position that this matter should be determined by the Court on the merits now, let alone any prejudice that could not be managed by the proper exercise of my trial management discretion as necessary.

[40] Accordingly, if leave is required (and I have decided that it is not), I would grant leave in the circumstances.

[41] For all of these reasons, in my view the interests of justice and the exercise of my discretion in respect of trial management issues lead me to the conclusion that I should consider the issue of solicitor client privilege on the merits and not decline to do so at this time, whether or not leave is required.

Rules 30.04 and 30.06

[42] Rule 30.04(5) provides that the court may at any time order production for inspection of documents that are not privileged and that are in the possession, control or power of a party. [Emphasis added].

[43] Rule 30.06 provides that where the court is satisfied by any evidence that a claim of privilege may have been improperly made, the court may order that disclosure or production of the document, or a part of the document, if it is not privileged. [Emphasis added].

[44] Pursuant to Rule 30.06(d), the court may inspect the document for the purpose of determining its relevance or the validity of the claim of privilege. Koehnen, J. of this Court observed in Canadian National Railway Company v. Holmes et. al., 2022 ONSC 1682, that courts have long been permitted to inspect documents over which privilege is claimed in order to determine whether privilege attaches, and indeed it has also been held that it is a reviewable error for a judge to rule on the issue of privilege without inspecting the documents at issue (see para. 40).

The Claims of Solicitor Client Privilege

[45] As stated above, the AG asserts that all of the redacted portions in the Documents are properly the subject of solicitor client privilege. Importantly, no litigation privilege is asserted.

[46] It is the position of the AGC that all nine Documents at issue involved the seeking or provision of legal advice from counsel, and particularly in at least some cases from Mr. Glenn Sheskay, the General Counsel with Industry Canada Legal Services who has been present throughout the trial.

[47] The AGC also relies upon the Department of Justice Act, R.S.C. 1985, c. J-2, in support of its position that the Minister is the official legal advisor of the government, and is entitled to the benefit of legal advice, including from in-house government lawyers.

[48] The AGC relies upon Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, for the proposition that solicitor client privilege has been held to arise when in-house government lawyers provide legal advice to their client, a government agency (para. 19). I have no difficulty with this proposition and it is not seriously challenged by the Plaintiffs in this case.

[49] The statements of the Supreme Court in Pritchard, and particularly those relied upon by the AGC at paras. 19 – 21), are applicable here:

In identifying solicitor client privilege as it applies to government lawyers, Binnie, J. compared the functional public lawyers and government agencies with corporate in-house counsel. He explained that were government lawyers give legal advice to a “client department” that traditionally would engage solicitor client privilege, and the privilege would apply. However, like corporate lawyers who also may give advice in an executive or non-legal capacity, where government lawyers give policy advice outside the realm of their legal responsibilities, such advice is not protected by the privilege.

Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered.

[50] This approach is entirely consistent with the approach of the Supreme Court in R. v. Campbell, [1999] 1 S.C.R. 565, in which Binnie, J. writing for the Court stated at para. 50:

It is, of course, not everything done by a government (or other) lawyer that attracts solicitor client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may be and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective governments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor client relationship is not protected. A comparable range of functions is exhibited by salaried corporate counsel employed by business organizations. Solicitor client communications by corporate employees with in-house counsel enjoy the privilege …

Whether or not solicitor client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.

[51] In General Accident Assurance Co. v. Chrusz, 45 O.R. (3d) 321, the Court of Appeal for Ontario cautioned against extending solicitor client privilege to communications with those who perform services which are incidental to the seeking and obtaining of legal advice. Solicitor client privilege does not extend to communications and information simply because it is relevant to a legal problem about which legal advice may have been sought or received.

[52] This is further consistent with the approach of Master MacLeod (now RSJ MacLeod) in L’Abbé v. Allen-Vanguard, 2011 ONSC 7575, at paras. 45 – 48.

In particular, lawyers may be asked to opine concerning regulatory compliance, contractual interpretation, or prospects of litigation. Legal analysis is frequently part of risk analysis. It would be odd if it were otherwise. Contracts will have to be interpreted. The risk of litigation will have to be analyzed. Regulatory risks in different jurisdictions must be assessed. Clauses will have to be drafted or interpreted during the negotiation process. Lawyers are frequently in the thick of merger and acquisition work. But not all of that work and certainly not all of the accounting or other work done in support of that work can attract solicitor client privilege.

It is important to remember that the ultimate objective of these inquiries is a business decision – whether or not to proceed with the purchase or whether or not to lend money to fund the acquisition. In that sense the ultimate outcome is not a legal opinion but business advice. Most of the inquiries made in support of the due diligence processes are not legal inquiries and they are not gathered for the purpose of giving legal advice.

Additionally, the legal opinions forming part of due diligence are for the most part opinions based not on confidential information of the client as would ordinarily be the case but based on confidential information disclosed by the target corporation. It may be concluded that not all aspects of due diligence are subject to solicitor client privilege and those which might yield to different policy considerations when assessing whether or not privilege has been waived.

It is here that Allen-Vanguard has it backwards. In their factum they seek to bring all of the due diligence inquiries conducted by accountants or others under the umbrella of solicitor client privilege. This is because these inquiries inform the giving of legal advice. In my view however the legal advice is ancillary to the fundamental inquiry whether or not to make the investment. The legal opinions inform the investment decision.

[53] The AGC submitted that the redactions were made, and properly so, by counsel. It relies upon the observations of the court in Disco-Tech Industries Inc. v. Canada (Attorney General), 2016 BCSC 578, where the court considered a situation in which legal advice from lawyers employed by the government was often intermingled with other comments by other persons, some of whom gave differing sorts of advice such as, for example, financial advice and political advice.

[54] The court in Disco-Tech observed that it was keeping in mind that the redactions were made by or under the direction of lawyers who were officers of the court and that the court was entitled to rely on counsel who needs to make the decision about what is privileged on the basis of the rules about privilege. All of this militated in favour of a necessity for the court to err on the side of maintaining solicitor client privilege.

[55] The AGC submitted that I should adopt the same approach here. I accept this proposition and the fact that, given the importance of solicitor client privilege in our law, I should proceed with caution in analyzing any challenge to a claim of solicitor client privilege that has been asserted. I have done so. This does not mean, however, that the court should decline to review this matter and blindly accept the assertion of privilege because it was made by counsel who are officers of the court.

[56] Nor, to state the obvious, does it mean that if the privilege is ultimately held to not apply, that those counsel have acted in any way improperly. Counsel, as officers of the court, take positions on all issues in good faith and in a manner consistent with their obligations as court officers, which may not ultimately succeed. There is nothing wrong with that; indeed, such is a central component of our legal system.

[57] The parties are in broad agreement that communications in respect of which solicitor client privilege is claimed must be viewed in light of the context surrounding the solicitor client relationship and the relationship itself. In particular, heed must be paid to the nature of the relationship, the subject matter of what is said to be advice, and the circumstances of the document in issue: see The Minister of Public Safety and Emergency Preparedness and The Minister of Justice of Canada v. The Information Commissioner of Canada, 2013 FCA 104 at paras. 25 – 31.

[58] As the Federal Court of Appeal held in that case, all communications between a solicitor and client directly related to the seeking, formulating or giving of legal advice are privileged, along with the communications within the continuum in which the solicitor tenders advice (para. 26). [Emphasis added]. I have added the emphasis to the requirement that the communications be between a solicitor and the client, and further that they be directly related to the seeking, formulating or giving of legal advice.

[59] Extensive submissions were made by both parties here about the continuum referred to by the Federal Court of Appeal (and many other courts). Unquestionably, solicitor client advice sought or received as part of a continuum of communications is protected by the privilege. The Federal Court of Appeal stated in The Minister of Public Safety that: in determining where the protected continuum ends, one good question is whether a communication forms “part of that necessary exchange of information of which the object is the giving of legal advice” (para. 28). Equally important here, in my view, is where the continuum begins, particularly if it does so without any involvement of a solicitor at all.

[60] The Federal Court of Appeal went on to state the following at paras. 30 – 33:

In some circumstances, however, the end products of legal advice do not fall within the continuum and are not privileged. For example, many organizations develop document management and document retention policies and circulate them to personnel within the organization. Often these are shaped by the advice of counsel. However, such policies are usually disclosed, without objection, because they do not form part of an exchange of information with the object of giving legal advice. Rather, they are operational in nature and relate to the conduct of the general business of the organization.

Similarly, an organization might receive plenty of legal advice about how to draft a policy against sexual harassment in the workplace. But the operational implementation of that advice - the policy and its circulation to personnel within the organization for the purpose of ensuring the organization functions in an acceptable, professional and businesslike manner - is not privileged, except to the extent that the policy communicates the very legal advice given by counsel.

In argument before us, counsel for the Ministers quite properly conceded that policies of these sorts are not covered by privilege.

It follows, then, that I agree with the Federal Court’s suggestion … that documents an action shaped by legal advice are not necessarily themselves legal advice and do not necessarily form part of the protected continuum of communication. There are occasions where parties have moved “past the stage of seeking or providing advice” i.e., beyond the protected continuum, and start to act on the advice for the purposes of conducting their regular business.

[61] The AGC submits that the redacted portions of all nine Documents either constitute the direct seeking or provision of legal advice or are part of the continuum of the necessary exchange of information of which the object is the giving of legal advice, and that all portions of the Documents are protected accordingly.

[62] Counsel for the AGC submitted, and counsel for the Plaintiffs agreed, that all spectrum licence transfer applications are subject to approval by the Minister, that the Minister is involved in policy decisions, and that (as noted above), these documents were created by the Telecom Policy Group. I would emphasize the word Policy in the title of that Group within the department and that the transfer of spectrum licences involve policy decisions.

[63] The AGC further submitted that I should look to the whole purpose of each Document (and particularly those Documents that constitute presentation or slide “decks”), rather than just the specific heading under which the redacted portion is located. I also accept this proposition and I have done that.

[64] Counsel for the Plaintiffs observed that the evidence of Mr. Hill was to the effect that he was not involved in the redactions at issue in these Documents, nor in fact in the redactions of any documents. The overarching position of the Plaintiffs is that all nine Documents relate to policy decisions and not the seeking or provision of legal advice, and matters of policy (and in particular statements of fact about current policy) cannot be the subject of solicitor client advice.

[65] With respect to these nine Documents, I observe a number of things.

[66] First, each is clearly related to matters that are squarely issues of policy. This is clear both from the face of the documents themselves and from the context within which they were created as demonstrated clearly by the evidence of Mr. Hill and as agreed by both parties. In short, they are policy documents, almost all of which were created by individuals within the Telecom Policy Group at Industry Canada, expressly for the purpose of either explaining as a matter of fact the then current policy (which is clearly not privileged) or for the purpose of describing various policy options which may or may not be available to, or of interest to, the Minister in the exercise of policy functions relating to spectrum licences.

[67] In my view, and based on the authorities set out above, the mere fact that a policy document (or a business or operations document) refers, in the context of a discussion about available policy (or business) choices or options, to various benefits and risks and references one possible risk as a legal challenge or an option that may have a legal risk, does not make the document (or the excerpt) privileged. On the contrary, a reference to a legal risk may very well be one of the considerations being discussed by individuals involved in the consideration and implementation of policy or business decisions, but it does not automatically attract privilege.

[68] This is particularly so where there is no evidence as to the involvement of a solicitor in the preparation or communication of the document, although to be clear a document could properly attract privilege if it records the seeking or provision of legal advice, even if the solicitor is not involved in the authorship or communication of the document itself. This is precisely the “continuum” referred to above.

[69] Second, none of the Documents here is authored by a solicitor. To be clear, I am satisfied that none is “part of a continuum of communication” within which legal advice was sought or received except to the extent specifically described below. Simply put, there is a complete absence of evidence, again except as described below, that the Documents are related to the seeking or providing of legal advice at all or that they were part of any solicitor client relationship, let alone one within which legal advice was sought or obtained as part of the continuum within which the Document was created.

[70] Third, the Documents, with noted exceptions, constitute slide or presentation decks or memoranda that do not on their face refer to any author or recipient at all, let alone any that are solicitors. For those, and subject to specific observations set out below, the evidence is as set out above: they were authored by the Telecom Policy Group within Industry Canada.

[71] The exceptions are Documents 5 and 9, which reference Mr. Sheskay (General Counsel at Industry Canada) as one of four recipients in an email chain comprising (in the case of Document 5 several different email messages, and in the case of Document 9, two different email messages). As noted below, the (first and only) reference to Mr. Sheskay in either case, is when he is added to the email chain in the message subsequent to the one that is the subject of the redactions at issue.

[72] The AGC emphasizes that he was General Counsel who routinely gave legal advice. The Plaintiffs submit that it is clear from the email chain, considered as a whole, that he was copied in a normal and ordinary course exchange of views on policy or business issues, that legal advice was neither requested of him nor given by him, and that the context of the communication is clearly non-privileged and policy related.

[73] I am satisfied that the Documents are those as described by the Court in Campbell and L’Abbé. Subject to my specific findings set out below, the Documents are policy documents and not documents or communications prepared for the seeking or giving of legal advice, or indeed as part of a solicitor client relationship at all.

[74] The AGC submits that Rule 30.06 contemplates a two-step process in that I must first be satisfied that a claim of privilege may have been improperly made, before I should inspect the Documents themselves for the purpose of determining the validity of the claim of privilege. As stated above, there are many cases that support the proposition that the court should inspect the documents themselves to make such a determination, without specifically considering whether or not an initial threshold has to be reached first.

[75] If it is a requirement of the Rule, I am satisfied in respect of each of the nine Documents, based on the analysis above, that a claim of privilege may have been improperly made.

[76] In any event, the AGC produced to the Court for the purposes of determining the validity of the claims of privilege, unredacted copies of each of the Documents. I have reviewed those and specifically considered them in reaching my conclusions, and I find the following in respect of each of the Documents, in addition to my general conclusions set out above. Given the nature of my findings, it is necessary to make reference to the specific redactions in each Document, as each must be considered separately:

a. Document 1: the evidence of Mr. Hill is that the document is dated September 27, 2012, and authored within the Telecom Policy Branch, likely specifically by Messrs. Johnstone and/or Chow, neither of whom is a solicitor.

The redacted text on page 3 relates in part to current policies. Those are statements of fact and cannot sustain a claim of privilege. The last point on page 3 references a legal risk but I am satisfied it is squarely within a discussion about policy options and is not solicitor client privileged.

The redacted text on page 9 is part of a policy discussion and operational decisions, including risks and benefits thereof. The redacted text is not solicitor client privileged.

The redacted text on page 12 is part of a discussion on policy options, none of which is the subject of a claim for privilege except for a single reference to a risk in respect of one possible approach. The redacted text is not solicitor client privileged.

The redacted text on page 13 is similarly a reference to the benefits (i.e., policy benefits) of one option being considered. It references a risk in respect of one option. The redacted text is not solicitor client privileged.

b. Document 2: this is also a Telecom Policy Branch document, in this case a presentation deck. It constitutes a briefing presentation on considerations about spectrum transfers. The evidence of Mr. Hill was to the effect that the document was discussing current and historical practices and a discussion about policy.

The redacted text on page 4 expressly refers to legal advice received. It is solicitor client privileged.

c. Document 3: this is a memorandum concerning Ministerial Discretion. The evidence of Mr. Hill was again to the effect that he believed it was prepared by the Telecom Policy Branch. The document makes a specific reference, immediately above the redacted excerpt, to the policy of Industry Canada of facilitating secondary market licence transfers.

The redacted text on the first page, fourth bullet, expressly refers to legal advice received. It is properly solicitor client privileged.

The redacted text in the table at the bottom of the first page also expressly refers to legal advice received and is solicitor client privileged.

d. Document 4: this is a memorandum “to provide an update on developments in the mobile telecom sector and the policy implications, particularly regarding Industry Canada’s approach to spectrum transfers”.

The redacted text at the bottom of the first page as part of the “Summary” is a policy discussion and is not solicitor client privileged.

The redacted text at the bottom of page 5 and the top of page 6 expressly refers to legal advice received and is solicitor client privileged.

The redacted text at the bottom of page 6 is part of the continuum of communications within which the legal advice referred to immediately above was sought and received, and is properly solicitor client privileged.

The redacted text in each of the three paragraphs on page 7 is part of the continuum of communications within which legal advice was sought and received, and is properly solicitor client privileged.

The redacted text on page 8 expressly refers to legal advice received and is solicitor client privileged.

e. Document 5: this is an email chain including several emails over a five day period. This is the one exception referred to above in that the document expressly references Mr. Sheskay as one of the recipients. However, Mr. Sheskay appears as one of four recipients for the first time on an email dated November 13, 2012 at 6:34 PM forwarding an earlier email which forwards yet another earlier email from four days earlier, on November 9. It is that November 9 email that contains the redacted text.

No solicitor is a sender or recipient in any capacity of the November 9 email. When it is forwarded to Mr. Sheskay, among three others, some days later, the message to those recipients is “please let me know your views/comments if possible tomorrow so we may proceed”. All of the other three recipients are policy or operations personnel. No legal advice is sought and the discussion is part of a policy or operational decision-making process on, as the email chain itself shows, whether and how to respond to Rogers/Shaw in respect of a specific transaction and “the government’s approach to transfers in general”. The email chain does not contain any legal advice from Mr. Sheskay or indeed any response from him at all.

With respect to the redactions in the email of November 9, 2012, the redactions to the fifth paragraph beginning “With respect to” are part of the policy discussion and are not solicitor client privileged.

The redactions to the sixth paragraph beginning “We asked” expressly refers to legal advice sought and received and are solicitor client privileged.

The redactions to the ninth paragraph on the second page of the November 9 email also refer to legal advice sought and received and are solicitor client privileged.

f. Document 6: this is a memorandum entitled “Advice to the Minister. Approach to mobile spectrum Licence Transfer Requests”. It is authored by the Deputy Minister and the Senior Associate Deputy Minister and on its face relates “to the department’s approach to mobile spectrum licence transfer requests.”

The redacted text in the first paragraph of the second page expressly refers to advice received from Legal Services and is solicitor client privileged.

g. Document 7: this is a slide deck presentation entitled “Approach to Mobile Spectrum Licence Transfers” dated January, 2013. The Agenda is expressly stated to include: current approach; considerations; and options for moving forward.

The redactions on page 3 refer to legal advice received and are solicitor client privileged.

h. The redactions on page 7 are part of a policy consideration and discussion on policy options available to Industry Canada. The redactions are not solicitor client privileged.

i. Document 8: this is a memorandum entitled “Spectrum Context”. By response to undertaking given on its examination for discovery, the AGC confirmed that it was prepared by Mr. Hill and further that it may have been used to brief senior bureaucrats.

However, in his evidence at trial, Mr. Hill stated that he did not author the document, and nor was he asked whether he had done so to respond to the undertaking. His evidence was, however, that someone on his team may well have prepared the document in consultation with others, and that he did not disagree that the purpose of the document was to keep the ADM SITT informed, as she may have requested, about possible licence transfers.

The redactions are found on page 2 of the document. Given the context and purpose of the document as described by Mr. Hill, and the absence of any involvement of any solicitor, I am satisfied that the redacted text is squarely part of the discussion of policy options available to the department, and while it refers to legal considerations, is clearly part of that policy discussion of which legal considerations are of but one business or policy component. The redacted text is not solicitor client privileged.

j. Document 9: this is a draft email to Mr. Iain Stewart that was an attachment to an email first from Ms. Helen McDonald (personal email) to herself (work email) and then from Ms. McDonald to four recipients, one of whom was Mr. Sheskay.

As a preliminary point, this is the document that was initially produced by the AGC, filed in the motion record by the Plaintiffs to have Mr. Hill replaced as the representative witness on examination for discovery, and subsequently advised by counsel to the AGC to have been inadvertently produced (in unredacted form).

I am satisfied in the circumstances of this complex and lengthy action, with thousands upon thousands of productions, that the production of the unredacted version was inadvertent. There was no intention to waive privilege and I am satisfied that the inadvertent production did not constitute a waiver of such privilege.

It follows that I must determine whether the redacted text is, however, properly the subject of the privilege which continues to be asserted.

This is another document created by a senior policy person within Industry Canada. Mr. Sheskay received a copy of the draft, together with others, subsequent to its creation. There is no evidence of any response from him, let alone legal advice. None of the other three recipients is a solicitor.

Like Document 5 discussed above, the document is expressly part of a policy discussion and a consideration of policy issues relating to the transfer of AWS licences and competition concerns. It specifically references the “longer-term considerations of the state of competition and whether anything needs to be done”. It then frames the discussion with reference to six numbered issues. I am satisfied that they are all clearly part of a policy or operational discussion and do not relate to the seeking or provision of legal advice.

The redacted text refers to one of those six numbered policy issues. It references legal risks but in my view does so squarely within the context of these policy discussions and, accordingly, is not solicitor client privileged.

Result and Disposition

[77] The AGC is directed to produced immediately and in any event no later than 1 PM tomorrow, Sunday, December 17, versions of the Documents that accord with my direction set out above (i.e., without redactions where I have concluded that the redactions are not properly the subject of solicitor client privilege).

[78] I will address any issues that may arise from this ruling upon the resumption of the trial on Monday, December 18, 2023.

Osborne J.