A-263-97
The Honourable Sinclair M. Stevens (Appellant) (Applicant)
v.
The Prime Minister of Canada (The Privy Council) (Respondent) (Respondent)
Indexed as: Stevensv. Canada (Prime Minister) (C.A.)
Court of Appeal, Stone, Linden and Robertson JJ.A." Toronto, April 22; Ottawa, June 5, 1998.
Practice — Privilege — Whether lawyer's billing accounts protected by solicitor-client privilege from disclosure under Access to Information Act — Appellant, former federal cabinet minister, subject of Commission of Inquiry regarding conflict of interest allegations arising from business dealings — Application to Information Commissioner for disclosure of billing accounts, supporting documents of Commission counsel partially successful — Trial Judge finding expurgated material protected by solicitor-client privilege as directly related to seeking, formulating, giving of legal advice — Conflict between public interest in free communication between lawyers, clients, and in disclosure of relevant evidence before court — Solicitor-client privilege, guarantee of confidentiality distinguished — Privilege protecting communications only, not acts of counsel, mere statements of fact — Bills of accounts privileged under case law on tax litigation — Privilege substantive right, not merely rule of evidence — Narrative portions of bills of accounts communications for purpose of obtaining legal advice.
Access to information — Appellant seeking disclosure under Access to Information Act of billing accounts, supporting documents of Commission of Inquiry — Provided with 336 pages of legal accounts, receipts, other related documents, but narrative portions on 73 pages of disclosed accounts expurgated on basis of solicitor-client privilege under Act, s. 23 — Privilege designed to promote free flow of communication between lawyer, client — Narrative portions of bills of account communications for purpose of obtaining legal advice — Government having released more information than legally necessary — Government perhaps more ready than private client to waive privilege under policy of transparency — Discretion exercised properly under Act, s. 23.
This was an appeal from a Trial Division decision dismissing an application under section 41 of the Access to Information Act for review of the Information Commissioner's decision. The appellant, a former federal cabinet minister, was the subject of an inquiry into conflict of interest allegations arising from certain business dealings. After the Parker Commission of Inquiry had submitted a report to the House of Commons on December 3, 1987, which was critical of the appellant, the latter made an application to the Information Commissioner, under the Access to Information Act, for disclosure by the Privy Council Office (PCO) of the billing accounts and supporting documents of Commission counsel. The appellant sought these documents in support of his allegation that Commissioner Parker had allowed Commission counsel to write, or at least assist in the preparation of the Report. He was provided with 336 pages of legal accounts, receipts and other related documents, but the narrative portions on 73 pages of the disclosed accounts were expurgated on the basis of solicitor-client privilege under section 23 of the Act. The appellant was informed by the Information Commissioner that the expurgated material had been properly withheld from disclosure. On application for judicial review to the F.C.T.D., Rothstein J. found that the material was protected by the solicitor-client privilege, as it was "directly related to the seeking, formulating or giving of legal advice or assistance". He also ruled that disclosure to the PCO did not constitute disclosure to a third party, as the PCO is simply another department of government, and that there was no waiver of the privilege. The main issue on appeal was whether and to what extent a lawyer's billing accounts are protected by solicitor-client privilege from disclosure under the Access to Information Act .
Held, the appeal should be dismissed.
The history of solicitor-client privilege is one of a tension between the public interest in maintaining free communication between lawyers and clients and the public interest in the disclosure of relevant evidence before the court. The underlying justification in either case is the fair and proper administration of justice. This doctrine, which dates back to the 16th century, has evolved over the years. Nowadays any communication between a lawyer and a client in the course of obtaining, formulating or giving legal advice is privileged and may not be disclosed without the client's consent. Canadian law has sought to strike an appropriate balance between openness and secrecy by creating two exceptions to the privilege. The first exception is for communications which are themselves criminal or which counsel a criminal act. The second exception relates to information which is not a communication but is rather evidence of an act done by counsel or is a mere statement of fact. The solicitor-client privilege is different from a guarantee of confidentiality: it has been primarily a rule of evidence, while the rule that a client's confidence must not be betrayed is an ethical or equitable doctrine. The law may in certain circumstances compel someone to betray a mere confidence, but may not compel someone to reveal something which is the subject of solicitor-client privilege. The duty of confidentiality is much broader than the protection provided by the solicitor-client privilege. While the privilege has traditionally been regarded as a rule of evidence, it has evolved over the years and has become a substantive right. The identity of the client is irrelevant to the scope or content of the privilege. A government is not granted less protection than any other client by the law of solicitor-client privilege. More importantly, the privilege protects communications only, not acts of counsel or mere statements of fact, the protection of which would have a detrimental effect on litigation. The privilege is of such importance to the administration of justice that a court, on its own motion, may raise it in order to protect the sanctity of the solicitor-client relationship.
The privilege protects the integrity of the solicitor-client relationship. A solicitor's bills of account are at the heart of that relationship. The terms and amounts of the retainer, the arrangements with respect to payment, the types of services rendered and their cost are also central to the relationship. The terms of a solicitor's retainer contain elements of a market transaction. Just as obtaining legal aid is part of obtaining legal advice, so too is the negotiation of financial terms of the relationship with a solicitor. The bills of account presented under that arrangement are merely an extension of those negotiations. They are privileged, but a lawyer's trust accounts and other accounting records are not so privileged. Many of the decisions which found that bills of accounts are privileged arose in the context of tax litigation. Courts have consistently ruled that bills of account are not "an accounting record of a lawyer", and have found them not to be within the statutory exception. The statement of account is privileged because it is integral to the seeking, formulating and giving of legal advice. The trust account ledger is not protected because it relates to acts done by counsel. Similarly, where the communication itself constitutes a criminal act, or counsels someone to commit a crime, a client or a solicitor cannot hide behind the privilege. The existence of these two exceptions to the solicitor-client privilege makes a broad ambit for its scope both desirable from an administrative point of view, and logical because it is consistent with the intention of Parliament. The privilege protects not only the communications between a solicitor and his client in a particular case, but also any future communications between clients and their lawyers in general. In the case at bar, the narrative portions of the bills of account were communications for the purpose of obtaining legal advice.
The Trial Judge's analysis of the waiver and discretion issues was correct. Given the importance of the right to communicate freely and openly with one's solicitor without fear of disclosure of that communication, the case law provided ample support for his conclusions. The Government has released more information than was legally necessary. The itemized disbursements and general statements of account detailing the amount of time spent by the Commission counsel and the amounts charged for that time were all privileged. By disclosing portions of the accounts, the Government was merely exercising its discretion in that regard. It may be that government will be more ready than a private party to waive privilege so that its activities will be transparent. Such discretion was exercised properly under section 23 of the Act.
statutes and regulations judicially considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 23, 25.
Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 232(1) "solicitor-client privilege".
Income Tax Act, S.C. 1970-71-72, c. 63, s. 232(1)(e).
cases judicially considered
followed:
Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; (1982), 141 D.L.R. (3d) 590; 70 C.C.C. (2d) 385; 28 C.R. (3d) 289; 1 C.R.R. 318; 44 N.R. 462.
applied:
Solosky v. The Queen, [1980] 1 S.C.R. 821; (1979), 105 D.L.R. (3d) 745; 50 C.C.C. (2d) 495; 16 C.R. (3d) 294; 30 N.R. 380; Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27; [1969] C.T.C. 353; (1969), 69 DTC 5278; Municipal Insurance Assn. of British Columbia v. British Columbia (Information and Privacy Commissioner) (1996), 143 D.L.R. (4th) 134; 31 B.C.L.R. (3d) 203; 71 C.P.R. (3d) 337 (S.C.); Double-E, Inc. v. Positive Action Tool Western Ltd., [1989] 1 F.C. 163; (1988), 20 C.I.P.R. 109; 21 C.P.R. (3d) 195; 21 F.T.R. 121 (T.D.); Lowry v. Can. Mountain Holidays Ltd. (1984), 59 B.C.L.R. 137 (S.C.).
considered:
Greenough v. Gaskell (1833), 39 E.R. 618 (Ch.); Solicitor General of Canada et al. v. Royal Commission of Inquiry (Health Records in Ontario) et al., [1981] 2 S.C.R. 494; (1981), 128 D.L.R. (3d) 193; 62 C.C.C. (2d) 193; 23 C.P.C. 99; 23 C.R. (3d) 338; 38 N.R. 588; Sandford v. Remington (1793), 30 E.R. 587 (Ch.); Dusik v. Newton et al. (1983), 1 D.L.R. (4th) 568; 48 B.C.L.R. 111; 38 C.P.C. 87 (C.A.); Beer v. Ward (1821), 37 E.R. 779 (Ch.); Chant v. Brown (1851), 9 Hare 790; 68 E.R. 735; Ainsworth v. Wilding, [1900] 2 Ch. 315; Taves (K.E.G.) v. Canada, [1995] 2 C.T.C. 347 (B.C.S.C.); Mut. Life Assur. Co. of Can. v. Dep. A.G. of Can. (1984), 42 C.P.C. 61; 84 DTC 6177 (Ont. H.C.); Playfair Developments Ltd v D/MNR, [1985] 1 CTC 302; (1985), 85 DTC 5155 (Ont. S.C.); Romeo's Place Victoria Ltd. and The Queen, Re (1981), 128 D.L.R. (3d) 279; 23 C.P.C. 194; [1981] CTC 380; 81 DTC 5295 (F.C.T.D.); Ontario Securities Commission and Greymac Credit Corp., Re (1983), 41 O.R. (2d) 328; 146 D.L.R. (3d) 73; 21 B.L.R. 37; 33 C.P.C. 270 (Div. Ct.); Law Society of Prince Edward Island v. Prince Edward Island (Attorney General) (1994), 123 Nfld. & P.E.I.R. 217; 382 A.P.R. 217 (S.C.T.D.).
referred to:
Berd v. Lovelace (1577), 21 E.R. 33 (Ch.); Dennis v. Codrington (1580), 21 E.R. 53 (Ch.); Slavutych v. Baker et al., [1976] 1 S.C.R. 254; (1975), 55 D.L.R. (3d) 224; [1975] 4 W.W.R. 620; 75 CLLC 14,263; 38 C.R.N.S. 306; 3 N.R. 587; Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81 (H.L.); Bell et al. v. Smith et al., [1968] S.C.R. 664; (1968), 68 D.L.R. (2d) 751; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; (1991), 125 A.R. 81; 81 D.L.R. (4th) 211; [1991] 5 W.W.R. 389; 80 Alta. L.R. (2d) 293; 42 E.T.R. 97; 127 N.R. 241; 14 W.A.C. 81; Burton v. Dodd (1890), 35 Sol. Jo. 39.
authors cited
Canada. Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens. Report. Ottawa: Minister of Supply and Services Canada, 1987 (Commissioner: William D. Parker).
Hazard, Geoffrey C., Jr. "An Historical Perspective on the Attorney-Client privilege" (1978), 66 Calif. L. Rev . 1061.
Law Society of Upper Canada. Rules of Professional Conduct, as adopted by Convocation of The Law Society of Upper Canada on 30 January 1987, as amended to 27 October 1996.
Louisell, David W. "Confidentiality, Conformity and Confusion: Privileges in Federal Court Today" (1956-57), 31 Tul. L. Rev. 101.
Manes, Ronald D. and Michael P. Silver. Solicitor-Client Privilege in Canadian Law. Markham, Ont.: Butterworths, 1993.
Morgan, E. M. "Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence" (1942-43), 10 U. Chi. L. Rev. 285.
Morris, Michael H. "Administrative Decision-makers and the Duty to Give Reasons: An Emerging Debate" (1998), 11 C.J.A.L.P. 155.
Phipson on Evidence, 14th ed. by Howard, N. M. et al. London: Sweet & Maxwell, 1990.
Sopinka, J. et al. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Wigmore, John Henry. Evidence in Trials at Common Law. McNaughton Revision, vol. 8. Boston: Little, Brown & Co., 1961.
APPEAL from a Trial Division decision ([1997] 2 F.C. 759; (1997), 144 D.L.R. (4th) 553; 72 C.P.R. (3d) 129; 127 F.T.R. 90) dismissing an application for judicial review of the refusal, based on solicitor-client privilege, to disclose portions of solicitors's accounts relating to a Commission of Inquiry into allegations of conflict of interest in respect of the appellant. Appeal dismissed.
appearances:
Peter R. Jervis and Elizabeth Grace for appellant (applicant).
Richard Kramer for respondent (respondent).
solicitors:
Lerner & Associates, Toronto, for appellant (applicant).
Deputy Attorney General of Canada for respondent (respondent).
The following are the reasons for judgment rendered in English by
Linden J.A.: The main issue in this appeal is whether and to what extent the billing accounts of a lawyer are protected by the solicitor-client privilege from disclosure under the provisions of the federal Access to Information Act, R.S.C., 1985, c. A-1 (the Act).
The appellant, the Honourable Sinclair Stevens, a former federal cabinet minister, was the subject of an inquiry commissioned to investigate allegations of conflict of interest arising from certain business dealings. The Commissioner of the Inquiry was Mr. Justice W. D. Parker. Commission counsel were David Scott, Marlys Edwardh, and Edward Belobaba. Counsel for Mr. Stevens was John Sopinka and for the Crown was Ian Binnie. During the course of the Inquiry, Commission counsel allegedly took a strong, adversarial stance against Mr. Stevens. Before the conclusion of the Inquiry, it is said that Mr. Justice Parker indicated to counsel for the appellant that Commission counsel would not be involved in drafting the report. The final report was submitted to the House of Commons on December 3, 1987 [Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens. Report.]. It was very critical of the appellant. He commenced an action in the Federal Court in 1987, challenging the substantive and procedural fairness of the Parker Commission of Inquiry and seeking to set aside the Report. One of the allegations in the action is that the Commissioner allowed Commission counsel to write or to assist in the preparation of the Report.1
In December 1992, the appellant in accordance with the Access to Information Act, made an application to the Information Commissioner for disclosure by the Privy Council Office (PCO) of, inter alia, the billing accounts and the supporting documents of Commission counsel.2 The request specified that the appellant sought the following information:
All legal accounts submitted by and cheque requisitions or authorizations, subsequent to February 15th, 1987, until the present, for David W. Scott of Scott and Aylen; Edward P. Belobaba of Gowling and Henderson; and Marlys Edwardh of Ruby and Edwardh relating to the Commission of Inquiry into Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens . . . .3
The request was partially successful, the appellant being provided with approximately 336 pages of legal accounts, receipts and other related documents. Typically, the legal accounts showed the names of the lawyer providing the services rendered, the dates on which the services were rendered, and the time spent each day. Disbursements were listed in detail. The total billings for the three Commission counsel amounted to over $230,000 for over 1,700 billed hours. However, the narrative portions on 73 pages of the disclosed accounts were expurgated on the basis of solicitor-client privilege pursuant to section 23 of the Act, which states:
23. The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.
The Information Commissioner, after being requested to review the released material on June 17, 1993, wrote to the appellant on August 30, 1993, informing him that the expurgated material was properly withheld from disclosure. That letter stated in part:
. . . some information concerns solicitors accounts submitted to the Parker Commission by its counsel for repayment. In particular, these portions reveal the precise nature of the services rendered by the solicitors to their client. Because of the insight these portions gave into the affairs of the "client", I conclude that they properly fall within the ambit of solicitor-client privilege. In my view, then, the records are legitimately withheld under the provisions of section 23 of the Act.4
The appellant filed an application in the Trial Division of this Court, pursuant to section 41 of the Act, for a review of the decision. Mr. Justice Rothstein heard the matter at trial and dismissed the application in a decision dated February 29, 1997 [[1997] 2 F.C. 759].
The Decision of the Trial Judge
A number of issues were dealt with by Rothstein, J. The fundamental question was whether the expurgated material was subject to solicitor-client privilege. Further, there was the matter of the waiver of the privilege. This point was raised because the client was Mr. Justice Parker and the solicitor was Commission counsel. However, the solicitors' accounts were submitted not to the client for payment, but to the PCO. It was argued that this constituted disclosure to a third party and, therefore, amounted to a waiver of the privilege. As well, there was disclosure of the unexpurgated records in two instances. This, it was contended, amounted to partial disclosure, and, therefore, consistency and fairness demanded that all the accounts be disclosed. Also, the appellant alleged that, in releasing expurgated records, the client has waived privilege with respect to the whole of the records. Finally, there was a question as to whether the government head's discretion was exercised properly and whether reasons should have been given for that decision.
Rothstein J. found that the material was protected by the solicitor-client privilege, as it was "directly related to the seeking, formulating or giving of legal advice or assistance."5 He also decided that disclosure to the PCO did not constitute disclosure to a third party, as the PCO is simply another department of government; therefore, there was no waiver of the privilege. Even in the event that the PCO were a third party, disclosure to that office still would not amount to waiver, as the disclosure was compulsory pursuant to Order in Council P.C. 1986-1139. As well, the disclosure of some material did not amount to waiver as this disclosure was inadvertent. Likewise, he held that disclosure of part of the records, in the context of the Act, does not amount to waiver of the privilege attaching to the expurgated material. Finally, Rothstein J. found that there was nothing improper about the discretionary decision and that there was no duty to give reasons for that decision. He concluded:
I find that the narrative portions expurgated by the Privy Council Office from the solicitors' accounts are subject to solicitor-client privilege. There has been no waiver of privilege express or implied, nor has the Privy Council Office failed to exercise discretion or erred in the exercise of discretion.6
It is this decision that is before us on appeal.
Submissions of the Parties
The appellant submits that Rothstein J. erred in finding that the material was subject to privilege. First, it is argued that the solicitor-client privilege should be applied narrowly in the context of the Act, which is designed to promote disclosure. Second, it is urged that only communications made for the purpose of obtaining legal advice are privileged. The accounts in question are not communications, it is said, but are acts of counsel to which privilege does not attach according to the authorities. What the appellant seeks is evidence that Commission counsel spent time doing research for the Parker Commission Report or otherwise assisting in the Report's preparation. The narrative portion of the accounts which the appellant seeks, it is said, are simply evidence of acts done by counsel and are not communications. The appellant submits that as long as the information does not disclose Commission counsel's actual research topics, the results of their research, what the drafts said, or the actual contents of their consultations with Commissioner Parker then no solicitor-client privilege attaches.
The respondent submits that Rothstein J.'s decision regarding the nature of solicitor-client privilege was correct. Specifically, it was consistent with the principles laid down by the Supreme Court in Descôteaux et al. v. Mierzwinski,7 which held that, where rights to disclosure are in conflict with rights to confidentiality and privilege, the preference should be in favour of maintaining confidentiality and privilege. Further, the respondent says that where a statute provides for the disclosure of privileged material, that statute should be interpreted restrictively. Lastly, solicitors' accounts that make reference to the actual professional services rendered by lawyers on behalf of their clients have repeatedly been held to be protected by the privilege.
Some Background
The history of solicitor-client privilege is the history of a tension between the private right to maintain a confidence with regard to consultations with one's lawyer, and the public right of a court to have all the relevant evidence before it in order to function properly. This dichotomous approach is perhaps misleading, as it is unfair to characterize the right to absolute confidentiality in legal matters as a purely private right. The doctrine of solicitor-client privilege protects not only the particular client but protects all clients. Its goal is to promote the free flow of communication between clients and lawyers. This allows for lawyers to do their job more effectively and in turn promotes the public interest in the proper and fair administration of justice.
This tension, then, may also be described as one between the public interest in maintaining free communication between lawyers and clients and the public interest in the disclosure of relevant evidence before the court. The underlying justification in either case, disclosure or confidence, is the fair and proper administration of justice.
Solicitor-client privilege dates back to the 16th century. Originally, it grew out of the sense of honour on the part of lawyers and meant only that the lawyer was not compellable as a witness in a proceeding for the purpose of testifying as to discussions with the client.8 It was recognized very early on that the solicitor-client relationship was a special one and that different rules would apply than did with respect to other professional relationships. This, it has been said, arose not so much out of respect for lawyers, nor for their clients, but because it was a necessary element of the legal system. Brougham L.C. in Greenough v. Gaskell9 stated the justification for the privilege in this way:
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.10
The doctrine has evolved over the years. Nowadays any communication between a lawyer and a client in the course of obtaining, formulating or giving legal advice is privileged and may not be disclosed without the client's consent. The great Dean Wigmore has explained the privilege 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 disclosure by himself or by the legal adviser, except the protection be waived.11
This is the basic rule as it applies in Canadian law today. The rationale of the privilege is to ensure that a client is free to tell his or her lawyer anything and everything that is pertinent to the case, without any fear that this information may subsequently be divulged and used against them. Without this freedom, there is the possibility that the lawyer may not have the benefit of all the relevant information, and may not be able to do his or her job effectively. And that possibility must be avoided as contrary to the interests of justice.
A further basis for the privilege, one which approaches the privilege from a different angle, is that offered by Professor David Louisell, who highlights the privacy interests advanced by the right. He states:
Primarily they [privileges] are a right to be let alone, a right to unfettered freedom, in certain narrowly prescribed relationships, from the state's coercive or supervisory powers and from the nuisance of its eavesdropping. Even when thrown into the lap of litigation, they are not the property of the adversaries as such; even in litigation, they may be exclusively the property of perfectly neutral persons who wish to preserve despite litigation, just as they preserved prior to litigation, their right to be left alone in their confidences.12
Though the administration of justice is an important consideration, Professor Louisell points to the more basic and intuitive idea that what is being protected is the privacy of the individual and the right to conduct his or her affairs without the intrusion of the state. Where the relationship involved is of such importance as the one existing between a solicitor and client, it is a vital value of our society to ensure that those dealings remain the business of the participants to the relationship and of no one else. Professor Louisell questions whether the free flow of communications between the solicitor and the client is actually promoted by the privilege.13
Of course, any rule of privilege works against another key interest in the administration of justice that all relevant material be placed before the court in order for it to perform its truth-finding function properly. One Canadian text on the law of evidence states:
Accordingly, there always exists a tension when the doctrine of privilege is invoked as it consequentially obstructs the truth finding process. That being the natural result, the Courts have not shown great eagerness to proliferate the areas of privilege.14
There is a fine line to be drawn between these two vital interests. The courts have sought an equilibrium in this regard, one which maintains a respect for the sanctity of the relationship between a solicitor and his or her client, but also recognizes the importance of promoting full disclosure of all material relevant to the truth-finding process. Professor Geoffrey Hazard, describing this dilemma, wrote:
. . . the definition of the privilege will express a value choice between protection of privacy and discovery of truth and the choice of either involves the acceptance of an evil"betrayal of confidence or suppression of truth.15
It will be seen that Canadian law has sought to strike an appropriate balance between openness and secrecy by creating two exceptions to the privilege. One exception, which will be discussed later, is for communications which are themselves criminal or which counsel a criminal act (e.g. where a lawyer advises a client to conceal evidence). The second exception, which will be analysed in depth later, relates to that information which is not a communication but is rather evidence of an act done by counsel or is a mere statement of fact. This prevents a stifling of the discovery process which would take place if a client could, by merely communicating a fact to his or her lawyer, prevent the discovery of that fact. Similarly, a person is not immune from discovery with regard to certain transactions merely because they were performed by counsel. Both exceptions acknowledge the tension involved in this area of the law, and both accept that justice is better served by lifting the privilege in those cases.
Some Preliminary Matters
In attempting to resolve this particular problem in the law of solicitor-client privilege as it relates to lawyers' bills of costs, there are some matters to be considered. The first of these is that the solicitor-client privilege is not identical with a guarantee of confidentiality. It is more accurate to say that the privilege is a type of confidentiality; the former is narrow and very strong, whereas the latter is broader and more prone to exception. Essentially, solicitor-client privilege has been primarily a rule of evidence, while the rule that a client's confidence must not be betrayed is an ethical or equitable doctrine. The law may in certain circumstances compel someone to betray a mere confidence, but the law may not compel someone to reveal something which is the subject of solicitor-client privilege.
The rule of confidentiality is an ethical and equitable doctrine which may be enforced through professional sanctions or through equitable remedies.16 For example, Rule 4 of the Rules of Professional Conduct of the Law Society of Upper Canada, which is not atypical of the rules in other provinces, states:
The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and should not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.17
Where a lawyer is required by law to disclose information, and that information is not protected by solicitor-client privilege, then a lawyer must be careful to disclose only as much information as is required and no more.
This duty of confidentiality is much broader than the protection provided by the solicitor-client privilege. The classic elements of a legally protected privilege were enunciated by Dean Wigmore:
(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.18
Laskin C.J.C., in Solicitor General of Canada et al. v. Royal Commission of Inquiry (Health Records in Ontario) et al.,19 confirmed that the Wigmore criteria are a satisfactory guide with which to determine whether a privilege attaches to a given communication. Of course, there is no doubt that they are applicable to the relationship of a solicitor and his or her client. At the same time, they clearly indicate that, while confidentiality is certainly a necessary condition of solicitor-client privilege, it is by no means a sufficient condition.
While the privilege has traditionally been regarded as a rule of evidence, it has evolved over the years and, in Solosky v. The Queen,20 the Supreme Court established that it had become a substantive right. In that case, an inmate of a penitentiary claimed that the institution was violating his right to solicitor-client privilege when, for security reasons, it opened and inspected correspondence from his lawyer. Dickson J. (as he then was) stated:
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.21
This is not to say that the solicitor-client privilege has lost its evidentiary basis. In Solosky the Court found that it was being asked to extend the doctrine too far. In Descôteaux et al. v. Mierzwinski22 Lamer J. (as he then was ) commented on the rationale in Solosky. In Lamer J.'s opinion the Court was not applying a rule of evidence, as there was no litigation or proceeding before a court in that case, but rather the Court was appealing to the doctrine of confidentiality, which was akin to the privilege in litigation. He went on to set out the substantive rule of confidentiality:
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.23
Lamer J. outlined a very liberal approach to the scope of the privilege by extending it to include all communications made "within the framework of the solicitor-client relationship".24 The protection is very strong, as long as the person claiming the privilege is within that framework. If it is merely a claim for confidentiality, the protection, though broader, is not absolute, and it must be determined with a different set of criteria.
A second preliminary matter that must be considered in resolving the problem before us is that the identity of the client is irrelevant to the scope or content of the privilege. Whether the client is an individual, a corporation, or a government body there is no distinction in the degree of protection offered by the rule. In the case of a corporation or government the precise identity of the client may be more problematic, which may give rise to difficulties in determining whether or not the privilege has been waived. Also, it may be difficult to determine whether the privilege has been lost in some cases, where it is unclear who may claim the privilege and who may waive it within a corporate or a government context. However, these difficulties do not affect the substance of the right. Furthermore, I can find no support for the proposition that a government is granted less protection by the law of solicitor-client privilege than would any other client. A government, being a public body, may have a greater incentive to waive the privilege, but the privilege is still its to waive.
This last point leads to a third matter relevant to the disposition of this appeal. The effect of the provisions of the Act on the content of the privilege is nil. It was correctly determined by Rothstein J. that section 23 of the Act incorporates holus-bolus the common law of solicitor-client privilege. That term is not defined elsewhere in the Act. Hence, it can only be presumed that what is covered by the words "solicitor-client privilege" is the common law doctrine of solicitor-client privilege. That being the case, it is necessary for the government head to determine, before considering the operation of the Act, whether a document is subject to the privilege. If it is, then he or she may refuse disclosure. But the preliminary question is determined not in the context of the Act, but in the context of the common law. If the material is subject to the privilege, then the discretionary decision under section 23, whether to disclose it or not, is done in the context of the Act along with its philosophical presuppositions.
A related point is that, with respect to applications for information under the Act, it cannot be said that the appellant, by virtue of the particular purpose to which he wishes to put the information, has any more right to its disclosure than any other citizen who might make a similar application. The most that can be said is that the circumstances of the request may influence how the department head exercises his or her discretion, but it can have no relevance to whether there is any special entitlement to the information.
Perhaps the most important distinction that needs to be highlighted is that it is only communications that are protected by the privilege. Acts of counsel or mere statements of fact are not protected. In Susan Hosiery Ltd. v. Minister of National Revenue25 Jackett P., after reviewing the rules relating to solicitor-client privilege stated:
What is important to note about both of these rules is that they do not afford a privilege against the discovery of facts that are or may be relevant to the determination of the facts in issue. What is privileged is the communications or working papers that came into existence by reason of the desire to obtain a legal opinion or legal assistance in the one case and the materials created for the lawyer's brief in the other case. The facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if, otherwise, the party would be bound to give discovery of them.26
The general rationale for not protecting matters of fact or acts done is the detrimental effect it would have on litigation. For example, a person cannot avail himself or herself of the privilege by simply communicating a fact to a lawyer or allowing the lawyer to perform an act in his or her place.
The exclusion of acts from the ambit of privilege is a long-standing rule. Authority for it is found as early as Sandford v. Remington27 in the 18th century. Loughborough L.C. in that case allowed a lawyer to be called as a witness to testify as to acts done by his client that took place in his presence. He stated:
This witness may be called on to disclose all, that did pass in his presence at the execution of the deed, as a witness; so his having been sent by his client with orders to put the judgment in execution: that is an act: but he is not to disclose the private conversation as to the deed with regard to what was communicated as to the reasons for making it.28
Although a great deal of importance is placed on protecting the relationship between a solicitor and his or her client, the paramount task is the administration of justice. To that end the privilege will be interpreted so that it protects only what it is intended to protect and nothing more.
The exception relating to statements of fact is also well established, dating as far back as Lyell v. Kennedy (No. 2)29 in the 19th century. As with acts of counsel, a person cannot shield facts from discovery simply by communicating them to his or her lawyer. In the case of Dusik v. Newton et al.30 a defendant, Mr. Newton, was questioned as to his knowledge of facts which he had learned from his solicitor, Mr. Norton. The facts stemmed from a conversation between Mr. Norton and a third party, Mr. Gooderham. Mr. Newton refused to answer the questions on the basis that the knowledge was privileged. Seaton J.A. held that the knowledge was privileged as the questions pertained to the communication between the lawyer and his client. He concluded:
The Norton-Gooderham discussion is not privileged. Either of them can be asked about it. Newton's knowledge of what happened in that discussion is not privileged. He can be asked about it. What is privileged is the communication from Norton to Newton. It was a solicitor-client communication and neither Newton nor Norton can be required to answer questions about it.31
Thus statements of fact are not themselves privileged. It is the communication of those facts between a client and a lawyer that is privileged.
The last preliminary matter is that the privilege is of such importance to the administration of justice and held in such high regard by the courts that it is not necessary that the client personally object to the disclosure of the material. A court, on its own motion, may raise the matter of the privilege in order to protect the sanctity of the solicitor-client relationship. In Beer v. Ward,32 Lord Chancellor Eldon stated:
. . . the Court knows the privilege of the client, and it must be taken for granted that the attorney will act rightly, and claim that privilege; or that if he does not, the Court will make him claim it.33
This dictum underscores the idea that the protection of the privilege is not merely in the interest of the individual client in the particular circumstances, but it is also important to all present and future clients. The public should have the security of knowing that all communications with lawyers will be regarded as inviolate. Therefore, it is not only in the individual client's interest to assert the privilege, it is also in the court's interest, as long as no waiver has been given. Only in this way will the privilege facilitate the giving of advice in general.
Analysis
The judgment of the Supreme Court in Descôteaux is the natural starting place for any analysis of solicitor-client privilege today. Lamer J. determined that financial information given to a legal aid office for the purpose of obtaining legal aid was just as much subject to the privilege as any other information given in a solicitor-client relationship. He stated:
I therefore do not think that a distinction should be made between information that must be given in order to establish the probable existence of a valid claim and that given to establish eligibility from the point of view of financial means, since, on the one hand, information concerning the person's financial situation may be just as highly confidential as any other information and since, on the other hand, the fact of being unable to meet the eligibility requirements respecting financial means is no less fatal to the ability to obtain the services sought.34
Information given in connection with arrangements in regard to the payment of fees, therefore, was held to be subject to the privilege. As well, it has already been noted that Lamer J. took a liberal approach to the interpretation of privilege. If a statement by the client as to his or her financial resources can be seen as privileged, it is not unreasonable to think that the information about what tasks the lawyer performed and for how much time and at what cost might also be privileged. As President Jackett has said in Susan Hosiery Ltd.:
. . . all communications, verbal or written, of a confidential character, between a client and a legal adviser directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal adviser's working papers, directly related thereto) are privileged;35
It is essential to keep in mind that what the privilege protects is the integrity of the solicitor-client relationship. From a tactical point of view, in the context of litigation, clients should be free from the possibility that communications to their lawyers in "seeking, formulating or giving of legal advice" might be used against them. From a psychological point of view, in creating an atmosphere in which a client can be forthright and at ease, the privilege protects the relationship from the prying eyes of the state or other parties. A solicitor's bills of account are at the heart of that relationship. In my view, the terms and amounts of the retainer; the arrangements with respect to payment; the types of services rendered and their cost"all these matters are central to the relationship. If the relationship is indeed worth protecting, these matters must be immune to any intrusion.
What Lamer J. recognizes in Descôteaux, and what must be recognized here, is that the terms of the retainer of a solicitor by a client contains elements of a market transaction. It is not simply a relationship between hypothetical persons bound by honour, toiling for the love of justice. It is very much like any other market transaction that must be entered into in this day and age. As such, there are some basic realities about it that cannot be ignored. Just as it was necessary for the client to provide private information to the Legal Aid office in an effort to obtain legal advice, any other client must provide personal information and otherwise negotiate the terms of the relationship into which he or she is entering. That relationship is protected and the communications made in respect of that relationship"the communications necessary to bring that relationship about"are also protected. I am in total agreement with Rothstein J. when he wrote that "solicitors' accounts are directly related to the seeking, formulating or giving of legal advice or assistance".36 This point was made by Lamer J. in Descôteaux when he stated:
It follows from the authorities referred to above that conversations with a solicitor's agents held for the purpose of retaining him would also be privileged, even though the solicitor was not then, or ever, retained. In my view, the principle protects from disclosure a conversation between an applicant for legal aid and the non-lawyer official of the Legal Aid Society who interviews him to see if he is qualified.37
Just as obtaining legal aid is part of obtaining legal advice, so too is the negotiation of financial terms of the relationship with a solicitor. The bills of account presented pursuant to that arrangement are merely a necessary extension of those negotiations.
This position is in accord with the historical rule, which, for the most part, seems to have favoured the inclusion of solicitor's bills of accounts within the ambit of the privilege. Professor Phipson, in his text on evidence, supported the view that solicitor's accounts are subject to a broad privilege.38 One of the leading cases in support of this proposition was Chant v. Brown,39 where a solicitor's clerk was called to testify as to the contents of a bill of costs that he had prepared on behalf of his employer. It was held by Vice-Chancellor Turner that the witness could only be examined for the purpose of proving the handwriting, but that was the extent of it. He stated:
An attorney's bill of costs is, in truth, his history of the transactions in which he has been concerned; and if he cannot be called to prove the facts I think his clerk cannot be called to prove the history of them.40
One should notice about this dictum that it does not appear to differentiate between communications which are privileged and facts, which are not privileged.
The Chant v. Brown case was cited with general approval by Stirling J. in Ainsworth v. Wilding.41 In that case the plaintiff sought discovery of the defendant's bill of costs in related litigation as well as notes relating to matters that took place in chambers. Stirling J. paid close attention to the distinction between privileged communications and acts or mere statements of fact and found that the notes were privileged. As to the matter of the bill of costs, he was not required to determine the question with respect to the entire bills, as the defendant was willing to produce them. The objection was to disclosure of the notations and memoranda attached to the bills. Stirling J. examined some of the entries and came to this conclusion:
Now, as regards the first, there is a portion of that which is covered up which in my judgment is clearly protected, but there is a portion of it which can be entirely severed from the rest, and consists of a simple statement of what took place in chambers. So in regard to the entry of November 15. It seems to me that too much has been covered up, and I should suggest, as the best way of dealing with the case, that the junior counsel for the defendant should examine the bills of costs, and I do not think he will have any difficulty in severing the portions which ought to be discovered from those which ought not.42
Despite the fact that the defendant had not asked that the entire bills be privileged, if a general rule that they are privileged did exist then it seems hard to accept the judgment that "too much has been covered up." It also seems quaint from a modern legal perspective that the parties would be willing to trust junior counsel for the defendant to examine the accounts for the purposes of determining what was privileged.
In modern Canadian jurisprudence the law is not entirely clear. There is authority that appears to go both ways. A number of authorities have expressly found that solicitor's accounts are privileged, while others seem to disagree.43 Nevertheless, in my view, bills of account are privileged, but lawyer's trust accounts and other accounting records are not so privileged. What has been considered as two conflicting lines of authority can be reconciled.
The decisions which find specifically that bills of accounts are privileged are, in my view, the most influential, and so I shall deal with them first. Many of these arose in the context of tax litigation, where aspects of the solicitor-client privilege are defined in specific terms. Paragraph 232(1)(e) [now subsection 232(1)] of the Income Tax Act44 states:
232. (1) . . .
"solicitor-client privilege" means the right, if any, that a person in a superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between the person and the person's lawyer in professional confidence, except that for the purposes of this section an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be such a communication.
Courts have consistently found that bills of account are not "an accounting record of a lawyer", and have found them not to be within this statutory exception.
In Taves (K.E.G.) v. Canada45 the issue arose in the context of the Income Tax Act. One of the items in question in that case involved a letter from a solicitor to the client which included a cheque stub, a cheque requisition and a computer printed document entitled "Billing Memo" which listed unbilled time and disbursements on the file and which sought a direction from the solicitor for fees and disbursements to be billed. Baker J. found:
The letter in my view is privileged being in the nature of a statement of account which contains some description of services rendered.46
The Court went on to find that, while the cheque stub had to be disclosed by virtue of paragraph 232(1)(e) of the Income Tax Act, the "Billing Memo" did not fall within the statutory exception to the privilege.
In Mut. Life Assur. Co. of Can. v. Dep. A. G. of Can.47 the Minister of National Revenue attempted to seize a number of documents which were communications between the insurance company and its lawyers. Southey J. found that:
The privilege attaches not only to communications made by the client but obviously to communications made by the solicitor to the client as well and generally speaking covers all communications relating to the obtaining of legal advice. That general rule in my view would cover a statement of account.48
He went on to find, consistent with Baker J. in Taves, that the statement of account was not an accounting record of the lawyer, and so was not within the exception.
This determination was echoed in Playfair Developments Ltd v D/MNR49 where Galligan J. was required to determine whether inter-office communications pertaining to the transactions involving client's accounts were privileged. In that case, as with Mut. Life Assur., paragraph 232(1)(e) of the Income Tax Act deemed lawyers' accounting records and any supporting voucher or cheques not to be communications covered by solicitor-client privilege. He stated:
It seems to me that instructions given by solicitors to the accounting department which resulted in various financial activities that are recorded in the accounts do not fall within the meaning of "accounting record" or any "supporting voucher or cheque". Nor do I think that they form any part of the financial transactions themselves. It is my opinion therefore that all of those inter-office communications are privileged and I so rule.50
This ruling pertained not to the accounts themselves, but only to office communications.
One of the best treatments of the issue was written by Holmes J. in Municipal Insurance Assn. of British Columbia v. British Columbia (Information and Privacy Commissioner).51 This case did not involve the Income Tax Act, but was decided in the context of the access to information legislation in British Columbia. The respondent in that case had requested from the Information Commissioner disclosure of the government's legal bills with respect to a piece of litigation. The Information Commissioner had determined that the bills were not privileged. Holmes J. noted that the Information Commissioner had considered the decisions in Mut. Life Assur. Co. of Can. and Taves, but distinguished them on the basis that the account in question did not describe the legal services rendered to the client. In Holmes J.'s view this amounted to a "very narrow and restrictive test as to privilege attaching to a legal account".52 He concluded:
Communications of course need not contain legal advice to attract privilege, suffice they relate to obtaining advice of a lawyer and are made in confidence . . . .
An important and obvious breach of privilege, however, in my view occurred here because the information in the document reveals terms of the retainer.
The terms of a solicitor/client relationship are privileged, although the existence of the relationship in itself is not. The privilege includes but is not limited to financial arrangements between the solicitor and the client.53
These cases are in sharp distinction to those which find that trust account ledgers and other financial records of that type are not privileged. None of these cases deals specifically with bills of account, and so cannot be relied on without understanding the nature of the material which was sought to be disclosed. Ultimately, these cases can be distinguished because acts of counsel or statements of fact are not privileged. In Re Romeo's Place Victoria Ltd. and The Queen,54 for example, a client was being investigated and the trust account ledgers of the client's solicitor were ordered to be disclosed. Collier J. held that it was the record of the lawyer, and not of the client, and, therefore, not subject to privilege. However, other cases have found such items to be outside the ambit of the privilege on the more substantive ground that they do not disclose communications, but only acts. In Re Ontario Securities Commission and Greymac Credit Corp.55 the question of privilege arose in the context of a solicitor's activities with respect to money held in trust for the client. Southey J. held that the privilege did not attach to this activity. He stated:
Evidence as to whether a solicitor holds or has paid or received moneys on behalf of a client is evidence of an act or transaction, whereas the privilege applies only to communications. Oral evidence regarding such matters, and the solicitor's books of account and other records pertaining thereto (with advice and communications from the client relating to advice expunged) are not privileged . . .56
The accounts were examined and those things revealing privileged communications were severed. This decision might, at first glance, appear to be in conflict with Southey J.'s decision in Mut. Life Assur. Co. of Can. However, as discussed infra, this decision is merely the proverbial exception that makes the rule"it deals with acts of counsel and not communications.
In Law Society of Prince Edward Island v. Prince Edward Island (Attorney General),57 the RCMP attempted to seize documents in the possession of a lawyer relating to trust ledgers, general ledgers, and bank reconciliation ledgers which pertained to the dealings of a number of the lawyer's clients. MacDonald C.J.T.D. determined [at page 221]:
It is the communications between the client and his lawyer that are privileged. The trust ledgers, general ledgers and bank reconciliation ledgers are not communications between the solicitor and the client. These documents form part of the solicitor's records and are reports of acts, not communications. Privilege does not attach to these documents.
Thus, the jurisprudence in this area is not really in conflict. It merely reflects the existence of a broad exception to the scope of the privilege, namely, that it is only communications which are protected. The acts of counsel or mere statements of fact are not protected. This is an important balancing mechanism which, along with the prohibition against protecting communications which are themselves criminal, takes into account the public interest inherent in the proper administration of justice.
Where a lawyer is involved in the dealings of his or her client, like the disposition of funds held in trust for the client, as in Greymac, or the execution of an agreement for the purchase and sale of property, the existence or contents of these acts are not protected. The lawyer, in those situations, is not in the process of giving advice to the client, but is more like a witness to an objective state of affairs.
This explains the apparent conflict between the reasons of Southey J. in Greymac and Mut. Life Assur. Co. of Can. In the former case the trust account was determined not to be protected by the privilege, while the solicitor's accounts in the latter case were held to be privileged. The statement of account is privileged because it is integral to the seeking, formulating and giving of legal advice. The trust account ledger is not protected because it relates to acts done by counsel.
Similarly, where the communication itself constitutes a criminal act, or counsels someone to commit a crime, then a client (or a solicitor) cannot hide behind the privilege. This is made quite clear in Descôteaux, where Lamer J. refused to protect the legal aid information, which would otherwise be privileged, because those communications comprised the substantive elements of the crime of fraud. He concluded:
Thus communications that are in themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged . . . .58
This exception for criminal acts, ensures that the solicitor-client privilege cannot be used as a cloak for scoundrels who might seek to hide the truth for their own benefit. Society, despite the importance of fostering the sacred relationship between a solicitor and his or her client, will not allow it to become a cover for thievery and thuggery.59
The existence of these two exceptions to the solicitor-client privilege makes a broad ambit for its scope both desirable and logical. It is desirable from an administrative perspective. By giving bills of accounts the benefit of a blanket protection, the court avoids the procedural difficulties that would otherwise arise.60 In each case it would be necessary for the judge to inspect the accounts, and no doubt the lawyers for the parties would want to see them as well. This might put counsel in the awkward position of being privy to information that might be ordered not to be disclosed to his or her client"a situation that is better to avoid. It would be better avoided not only because it may not be practical, but because the very fact that the opposing party's lawyer might get to know about the privileged communication may have a negative impact on the freedom of communication between the client and the lawyer. Furthermore, the blanket approach to protection of solicitor's bills of account prevents the pernicious prying of lawyers who might insist that each bill be viewed and judged individually in an effort to determine if any of the material contained therein could be disclosed. This would promote a situation where it was tactically advisable for the lawyer to persist in his or her efforts to effect discovery of the accounts in the hope that, because of some error induced by the sheer volume of documents, some privileged information will fall into their hands. I do not think that such a state of affairs would promote the free flow of communication between lawyer and client, which the privilege is designed to foster.
We must always remember that the privilege does not protect only the communications between a solicitor and his or her client in the particular case at hand, but it must protect any future communications between clients and their lawyers in general. This is especially true in light of the Supreme Court's determination that this is now a substantive right and not merely a rule of evidence.
The rule is logical because it is consistent with the intention of Parliament. The Act does not contain any special definition of solicitor-client privilege. It was fully within the power of Parliament to insert a provision whereby these items would be specifically excluded from the ambit of privilege's protection. The expenses of government bodies, pertaining to legal fees or otherwise, are always of interest to the public. It is public money that is being spent. In so far as the intent of the Act is generally to promote the transparency of government activity, the incorporation of the common law doctrine of solicitor-client privilege indicates that it was meant to be excluded from the operation of the Act. This same privilege, when considered by Parliament in the context of the Income Tax Act, led to a recognition that in the interests of collecting revenue, the privilege that might otherwise protect some solicitor's financial records, was dispensable. Parliament did not make that same determination in enacting this Act.
In the case at bar, though the appellant contends that the information which he seeks relates only to acts of counsel and therefore should not be privileged, I am satisfied that the narrative portions of the bills of account are indeed communications. This is not analogous to a situation where a lawyer sells a piece of property for the client or otherwise acts on the client's behalf. The research of a subject or the writing of an opinion or any other matter of that type are directly related to the giving of advice. Despite the fact that the appellant is content to have the specific topic of research remain privileged, those other portions of the bills of account still constitute communications for the purpose of obtaining legal advice. In those circumstances the lawyer is not merely a witness to an objective state of affairs, but is in the process of forming a legal opinion. This is true whether the lawyer is conducting research (either academic or empirical), interviewing witnesses or other third parties, drafting letters or memoranda, or any of the other myriad tasks that a lawyer performs in the course of his or her job. It is true that interviewing a witness is an act of counsel, and that a statement to that effect on a bill of account is a statement of fact, but these are all acts and statements of fact that relate directly to the seeking, formulating or giving of legal advice. And when these facts or acts are communicated to the client they are privileged. This is so whether they are communicated verbally, by written correspondence, or by statement of account.
The Other Issues
I am satisfied that Rothstein J.'s analysis of the waiver and discretion issues was correct. Given the importance of the right involved"the right to communicate freely and openly with one's solicitor without fear of disclosure of that communication"the case law provides ample support for the Trial Judge's conclusions. The question of whether or not people have waived their right to privilege, absent explicit waiver, is one which must be judged according to all the circumstances. This approach to the application of solicitor-client privilege is clearly described by Muldoon J. in Double-E, Inc. v. Positive Action Tool Western Ltd. :61
Having, through the canons of thorough discovery proceedings, practically eliminated trial by ambush, the Court ought not, as it did not in Kulchar, resort to permitting loss of privilege by inadvertence.62
With respect to the release of portions of the records, a similar view has been adopted in British Columbia. In Lowry v. Can. Mountain Holidays Ltd.63 Finch J. emphasized that all the circumstances must be taken into consideration and that the conduct of the party and the presence of an intent to mislead the court or another litigant are of primary importance. I believe that this approach is appropriate in this case, particularly in light of section 25 of the Act, which allows the disclosure of portions of privileged information. This is an attempt to balance the rights of individuals to access to information, on the one hand, while maintaining confidentiality where other persons are entitled to that confidentiality on the other hand. It would be a perverse result if the operation of section 25 of the Act were thereby to abrogate the discretionary power given to the government head under section 23 of the Act.
I would add, with respect to the release of portions of the records, that, in light of these reasons, the Government has released more information than was legally necessary. The itemized disbursements and general statements of account detailing the amount of time spent by Commission counsel and the amounts charged for that time are all privileged. But it is the Government qua client which enjoys the privilege; the Government may choose to waive it, if it wishes, or it may refuse to do so. By disclosing portions of the accounts the Government was merely exercising its discretion in that regard. As I mentioned earlier, a government body may have more reason to waive its privilege than private parties, for it may wish to follow a policy of transparency with respect to its activity. This is highly commendable; but the adoption of such a policy or such a decision in no way detracts from the protection afforded by the privilege to all clients.
I am not persuaded that the discretion exercised under section 23 of the Act was exercised improperly. There is simply no evidence of this. Furthermore, the decision cannot be impeached merely because no reasons were given. No statute or regulation requires reasons to be given and there is no particular reason why reasons should be necessary in this case.64
Conclusion
The appeal, therefore, should be dismissed with costs.
Stone J.A.: I agree.
Robertson J.A.: I agree.
1 That law suit continues. A companion proceeding to remove Mr. Justice Parker as a party from that action is being disposed of along with this matter [Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125 (C.A.)].
2 This was the second information request for the same documents. The first was unsuccessful and is not relevant in this proceeding.
3 Appeal Book, Vol. III, at p. 415.
4 Letter from the Information Commissioner of Canada dated August 30, 1993, Appeal Book, Vol. XIII, at p. 1420.
5 [1997] 2 F.C. 759 (T.D.), at p. 771.
6 Ibid., at pp. 787-788.
7 [1982] 1 S.C.R. 860.
8 Berd v. Lovelace (1577), 21 E.R. 33 (Ch.); Dennis v. Codrington (1580), 21 E.R. 53 (Ch.)
9 (1833), 39 E.R. 618 (Ch.).
10 Ibid., at p. 621.
11 Wigmore, John Henry. Evidence in Trials at Common Law. McNaughton Revision, Vol. 8, at para. 2292.
12 David W. Louisell, "Confidentiality, Conformity and Confusion: Privileges in Federal Court Today" (1956-57), 31 Tul. L. Rev. 101, at pp. 110-111.
13 See also E. M. Morgan, "Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence" (1942-43), 10 U. Chi. L. Rev. 285.
14 J. Sopinka, S. Lederman and A. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at pp. 625-626.
15 Geoffrey C. Hazard, Jr., "An Historical Perspective on the Attorney-Client Privilege" (1978), 66 Calif. L. Rev. 1061, at p. 1085.
16 See Slavutych v. Baker et al. [1976] 1 S.C.R. 254.
17 Rules of Professional Conduct as adopted by Convocation of the Law Society of Upper Canada, 30 January 1987 (as amended).
18 Wigmore, supra, note 10, at para. 2285.
19 [1981] 2 S.C.R. 494.
20 [1980] 1 S.C.R. 821.
21 Ibid., at p. 836.
22 Supra, note 7.
23 Ibid., at p. 875.
24 Ibid., at p. 893.
25 [1969] 2 Ex. C.R. 27.
26 Ibid., at p. 34.
27 (1793), 30 E.R. 587 (Ch.).
28 Ibid., at p. 587.
29 (1883), 9 App. Cas. 81 (H.L.).
30 (1983), 1 D.L.R. (4th) 568 (B.C.C.A.).
31 Ibid., at p. 573.
32 (1821), 37 E.R. 779 (Ch.); see also Bell et al. v. Smith et al., [1968] S.C.R. 664; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 (per Wilson J.).
33 Ibid., at p. 780.
34 Descôteaux, supra, note 7, at pp. 877-878.
35 Supra, note 25, at p. 33.
36 Supra, note 5, at p. 771.
37 Descôteaux, supra, note 7, at p. 880.
38 Howard, Crane, Hochberg, eds. Phipson on Evidence, 14th ed. (London: Sweet & Maxwell, 1990), at p. 508.
39 (1852), 68 E.R. 735.
40 Ibid., at p. 737.
41 [1900] 2 Ch. 315; see also Burton v. Dodd (1890), 35 Sol. Jo. 39 for a decision that envisions a general privilege but ordered the disclosure of certain aspects in the bill of costs.
42 Ibid., at p. 325.
43 R. Manes and M. Silver, Solicitor-Client Privilege in Canadian Law (Markham, Ont.: Butterworths, 1993), at p. 173, where the authors state:
. . . entries in the lawyer's books and records consisting of dockets, accounts, cheques and the like are also not privileged because they also relate to acts.
44 S.C. 1970-71-72, c. 63 (now R.S.C., 1985 (5th Supp.), c. 1, s. 232(1)).
45 [1995] 2 C.T.C. 347 (B.C.S.C.).
46 Ibid., at p. 349.
47 (1984), 42 C.P.C. 61 (Ont. H.C.).
48 Ibid., at p. 64.
49 [1985] 1 CTC 302 (Ont. S.C.).
50 Ibid., at p. 305.
51 (1996), 143 D.L.R. (4th) 134 (B.C.S.C.).
52 Ibid., at p. 138.
53 Ibid., at p. 139 (citations omitted).
54 (1981), 128 D.L.R. (3d) 279 (F.C.T.D.).
55 (1983), 41 O.R. (2d) 328 (Div. Ct.).
56 Ibid., at p. 337.
57 (1994), 123 Nfld. & P.E.I.R. 217 (S.C.T.D.).
58 Descôteaux, supra, note 7, at p. 893.
59 See Hazard, supra, note 15, at p. 1091.
60 This is in conflict with the approach taken by Stirling J. in Ainsworth v. Wilding, supra.
61 [1989] 1 F.C. 163 (T.D.).
62 Ibid., at p. 172.
63 (1984), 59 B.C.L.R. 137 (S.C.), at p. 143.
64 See generally Michael H. Morris, "Administrative Decision-makers and the Duty to Give Reasons: An Emerging Debate" (1998), 11 C.J.A.L.P. 155.