PRACTICE |
Privilege |
Baltruweit v. Canada (Attorney General)
T-2029-01
2002 FCT 2000, Gibson J.
19/11/02
25 pp.
Solicitor-client privilege--Judicial review of Canadian Human Rights Commission's decision dismissing applicant's complaint of discrimination by reason of disability against CSIS--Application allowed--Standard of review--Court will not interfere with Commission's decision unless breach of principles of natural justice or other procedural unfairness or decision not supportable on evidence--Commission seeking legal opinion prior to making decision--Commission not disclosing substance of opinion to applicant on basis of solicitor-client privilege--Solicitor-client privilege not absolute--May, in rare circumstances, be required to yield in order to permit accused to make full answer and defence to criminal charge: R. v. Brown, [2002] 2 S.C.R. 185--While no criminal charge herein, parallel features--Some infringement on solicitor-client privilege preferable to contraction of scope of principle which is effect of Melanson v. New Brunswick (Workers' Compensation Board) (1994), 146 N.B.R. (2d) 294 (C.A.); Pritchard v. Ontario (Human Rights Commission) (2001), 148 O.A.C. 260 (Div. Ct.); affd [2002] O.J. No. 1169 (S.C.J.)--No reason why Commission could not have disclosed substance, not necessarily exact terms, of question referred to legal counsel--Then open to applicant, CSIS to make reply submissions as to correct answer to question-- Commission not required to disclose responsive legal opinion to comply with requirement to disclose "substance of evidence" on which intended to rely-- Commission breaching duty of procedural fairness by failing to inform applicant of substance of totality of evidence on which Commission might have relied in making decision and providing applicant reasonable opportunity to respond.