T-1685-96
Cliff Calliou acting on his own behalf and on behalf of all other members of the Kelly Lake Cree Nation who are of the Beaver, Cree, and Iroquois peoples, and Kelly Lake Cree Nation (Plaintiffs)
v.
Her Majesty the Queen in Right of Canada, and Her Majesty the Queen in Right of Canada as represented by the Honourable Ron Irwin, Minister of Indian Affairs and Northern Development (Defendants)
Indexed as: Kelly Lake Cree Nationv. Canada (T.D.)
Trial Division, Rothstein J."Edmonton, December 14, 1998; Ottawa, January 11, 1999.
Practice — Privilege — Counsel may not breach solicitor-client privilege when called upon by third party to provide information pertaining to relationship with former client, even to protect own reputation.
Barristers and Solicitors — Counsel may not breach solicitor-client privilege when called upon by third party to provide information pertaining to relationship with former client, even to protect own reputation.
In the context of an Aboriginal land claims case, one party, when cross-examined on his affidavit in support of a motion to intervene, stated that important historical and other information, including genealogical research and oral history, was being wrongfully withheld by the prominent Calgary and Edmonton law firm of Parlee McLaws. The plaintiffs then brought this motion for leave to file the affidavit of a lawyer with Parlee McLaws. The proposed interveners objected to its production on the grounds of privilege, stating that Parlee McLaws was acting for them when the events to which the lawyer with Parlee McLaws made reference in her affidavit took place. The affidavit did in fact contain privileged information. The only issue was whether privilege had been waived or was not applicable for any other reason.
Held, the motion for leave to file the affidavit should be dismissed.
While lawyers are justifiably sensitive about their reputations, the means of protecting their reputations must be prudently chosen. The fact that a former client, in litigation in which counsel is not involved, makes comments going to the reputation of that counsel, does not open the door for counsel to make disclosures that breach the former client's privilege. This was not one of the cases in which the Alberta Code of Professional Conduct allowed counsel to speak out. The proper course for counsel to follow when called upon by a third party to provide information pertaining to their relationship with a former client is to refuse to do so: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, unless the client gives an express, valid consent. An implied waiver is not sufficient. Even if some of the information was known publicly, that did not justify disclosure by the solicitor.
statutes and regulations judicially considered
Federal Court Rules, 1998, SOR/98-106, r. 84(2).
cases judicially considered
applied:
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; 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; Bell et al. v. Smith et al., [1968] S.C.R. 664; (1968), 68 D.L.R. (2d) 751.
referred to:
S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 35 C.P.R. 146 (B.C.S.C.).
MOTION to file an affidavit in response to an allegation, upon cross-examination of an affidavit, that a law firm was wrongfully withholding documents belonging to the plaintiff. Motion denied.
appearances:
Bruce L. Barry for plaintiff.
J. Trina Kondro and Karin E. Buss for Kelly Lake First Nation.
Patrick G. Hodgkinson and Mary King for defendants.
solicitors of record:
O'Reilly & Associés, Montréal, for plaintiff.
Ackroyd, Piasta, Roth & Day, Edmonton, for Kelly Lake First Nation.
Deputy Attorney General of Canada for defendants.
The following are the reasons for order rendered in English by
Rothstein J.: This is a motion to file an affidavit after cross-examination under subsection 84(2) of the Federal Court Rules, 1998 [SOR/98-106].1 However, before consideration of whether to admit the affidavit under subsection 84(2), there is a threshold question as to whether the affidavit should not be admitted because it contains privileged information.
This is an action for a land claim based on Aboriginal rights. The various groups or entities that are or may be involved in this litigation are the following. The descriptions are taken from the pleadings and affidavits and are not findings of the Court.
1. Kelly Lake First Nation (KLFN)
The KLFN is said to consist of Beaver, Cree, and Iroquois people who live in a community in northeastern British Columbia near Dawson Creek.
2. Kelly Lake Cree Nation (KLCN)
The KLCN is said to consist of Beaver, Cree and Iroquois people. It is not clear at this stage of the proceedings how the membership of the KLCN and the KLFN differ or overlap. It appears that in 1996, there was a dispute within the KLFN, and certain members withdrew and formed the KLCN.
3. Kelly Lake First Nation Society (First Nation Society)
This society was incorporated in March 1995, apparently to provide the KLFN with a corporate entity for business and other transactions. The directors are the Chief and Council of the KLFN.
4. Kelly Lake Cree Nation Society (Cree Nation Society)
This society was incorporated in July 1996.
Parlee McLaws is a well-known and respected law firm in Calgary and Edmonton. Parlee McLaws acted for the KLFN. from January 1995, until at least June 1996. It incorporated and acted for the First Nation Society from March 1995 until at least June 1996. On March 15, 1996, Parlee McLaws filed a statement of claim in the Court of Queen's Bench for Alberta on behalf of the First Nation Society against Her Majesty the Queen in Right of Canada making a claim for land based on Aboriginal rights. On July 25, 1996, Parlee McLaws filed a notice of discontinuance of the Queen's Bench action and, on the instructions of the Cree Nation Society, commenced this action in this Court on behalf of the KLCN against Her Majesty the Queen in Right of Canada making a claim for land based on Aboriginal rights. Parlee McLaws no longer acts for the KLFN, First Nation Society, KLCN or Cree Nation Society in this litigation.
By motion filed May 25, 1998, in this action, Claire Gauthier, on behalf of the KLFN and the First Nation Society, sought to intervene in these proceedings. The intervention arises because of the apparent dispute as to the precise group of Aboriginal persons who are entitled to the land being claimed. Of relevance to this motion, Gauthier says, in his affidavit, that the proposed intervenors have historical and other factual information, including genealogical research and oral history which is necessary for the Court to determine this matter. They say they would be more willing to contribute this information to the litigation if KLFN intervened.
It is with respect to this genealogical research, and other matters, that Mr. Gauthier was cross-examined on his affidavit in support of this motion. Mr. Gauthier was asked if such information was available. He answered that it was not. He said it was submitted to Parlee McLaws and was never returned. Counsel for Mr. Gauthier said that the information was being wrongfully withheld by Parlee McLaws. I quote from the transcript of the cross-examination:
Q Now, in paragraph 20, you refer to the fact that you have significant evidence and information which may assist the Court from, for example, Mr. Norm Calliou.
So I was wondering if you could describe what that evidence is for us, please.
A He's done some significant work with"genealogical work and research with the members of Kelly Lake people, our history, who the members are, who the people are, and that's what we've been going by.
Q When did he start doing that research for you?
A In 1995.
Q In '95, when Cliff Calliou was a member of the board of directors, isn't it?
A Yes.
Q Did Mr. Calliou provide this information to the board of directors at the time?
A No.
Q Is it available right now?
A I don't think so. We don't have it. We submitted it to Parlee McLaws and never got it back.
MS. BUSS: (Counsel for Gauthier) Parlee McLaws in our view is wrongly withholding those documents that belong to Norman Calliou.
MR. JOYAL: Well, my information is that they don't have any information from Mr. Calliou.
MS. BUSS: They have boxes of information of Mr. Calliou's.
MR. JOYAL: Well, that is not my information.
It is the reference to Parlee McLaws wrongfully withholding the documents that gives rise to this motion by the plaintiffs to file the affidavit of Priscilla Kennedy, a lawyer with Parlee McLaws, and the objection by the proposed interveners on the grounds of privilege.
Ms. Kennedy acted as one of the lawyers for the First Nation Society until at least June 1996. Her affidavit addresses the question of whether the documents referred to by Mr. Gauthier in his cross-examination are in the possession of Parlee McLaws and are being wrongfully withheld. The proposed interveners say that Parlee McLaws was acting for them when the events to which Ms. Kennedy makes reference in her affidavit occurred. They say the information in her affidavit is subject to privilege because it relates to communications with counsel and information gathered by counsel for the purposes of advising the proposed interveners and for the purpose of litigation, namely the land claim which was the subject of the Queen's Bench action.
I have read the affidavit and, without disclosing its contents in these reasons, except where privilege is clearly not applicable, I am satisfied that, to all intents and purposes, it contains privileged information as between the KLFN and/or the First Nation Society and Parlee McLaws. Counsel's activity on behalf of the KLFN and First Nation Society are set out, including communications with various persons, attendances and other work done. There is no doubt the information is privileged. The only issue is whether privilege has been waived or is not applicable for any other reason. I have concluded that the privilege is applicable.
Paragraphs 3 and 4 of Ms. Kennedy's affidavit indicate a reason for filing the affidavit apart from the issues in this litigation or the motion of the proposed interveners to intervene. It is to protect the good name of Parlee McLaws.
3. THAT I have reviewed the transcript of cross-examination of Claire Gauthier taken on July 27, 1998 in relation to a motion for leave to intervene in this action by Claire Gauthier, on his own behalf and on behalf of the Kelly Lake First Nations Society, and that on pages 46 and 47 Claire Gauthier and his counsel, Karin Buss, state that Parlee McLaws has received from Norman Calliou genealogical information related to the members of the Kelly Lake community and that my firm is "wrongfully" withholding the same. Claire Gauthier was one of the directors of the Kelly Lake First Nations Society and Karin Buss was an Associate of Parlee McLaws during the time that I acted for the Kelly Lake First Nations Society and these statements require a response. [Emphasis added.]
4. THAT this cross-examination is the first time that Claire Gauthier and his counsel, Karin Buss have made such claims against Parlee McLaws and these allegations put into question the professional integrity of Parlee McLaws. [Emphasis added.]
While all lawyers are justifiably sensitive about their reputations and should be, the means and occasion to protect reputation must be prudently chosen. The fact that a former client, in litigation in which counsel is not involved, makes comments going to the reputation of that counsel, does not open the door for counsel to make disclosures that breach the former client's privilege.
Certainly there are occasions when, notwithstanding privilege, counsel is entitled to speak out. The Alberta Code of Professional Conduct issued by the Alberta Law Society provides that a lawyer has a duty to keep confidential all information concerning a client's business, interests and affairs acquired in the course of the professional relationship. This is subject to some exceptions, one of which is Rule 8(f) of chapter 7:
8. . . .
(f) A lawyer may disclose confidential information when reasonably necessary for the lawyer to properly prosecute an action or defend a claim or allegation in a dispute with a client.
This is not a situation contemplated by Rule 8(f). There is no action or claim as between the KLFN or the First Nation Society and Parlee McLaws. There is no evidence that the KLFN or the First Nation Society have asked Parlee McLaws for the information alleged to be withheld and have been refused and therefore there is no dispute between them in this litigation.
In my opinion, the proper course for counsel to follow when they are called upon by a third party to provide information pertaining to their relationship with a former client is to refuse to do so. The law is set out in a number of cases. In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Wilson J. states at page 383:
The client may, of course, herself choose to disclose the contents of her communications with her legal representative and thereby waive the privilege. Or, the client may authorize the solicitor to reveal those communications for her. Even then, however, the courts have been cautious in allowing such disclosures, so much so that they have assumed for themselves the role of ensuring that without the client's express consent a solicitor may not testify.
In Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860, at page 876, Lamer J., (as he then was) cites with approval the rule of evidence formulated by Cross (Cross on Evidence, 5th ed. (1979), at page 282) as follows:
In civil and criminal cases, confidential communications passing between a client and his legal adviser need not be given in evidence by the client and, without the client's consent, may not be given in evidence by the legal adviser in a judicial proceeding . . .
In Bell et al. v. Smith et al., [1968] S.C.R. 664, Spence J. states at page 671:
Because the solicitor owes to his former client a duty to claim the privilege when applicable, it is improper for him not to claim it without showing that it has been properly waived.
These cases make it clear that a solicitor should not give evidence about privileged communications and information without the former client's express consent.
Here, Ms. Kennedy should have sought the consent of the KLFN and/or the First Nation Society before preparing her affidavit. Without such consent it should not have been prepared for counsel who now is opposing the KLFN and the First Nation Society and therefore cannot be admitted.
Ms. Kennedy says in her affidavit that she obtained the consent of three of the five directors of the First Nation Society "at that time" for the purposes of making her affidavit. However, the evidence is that the three directors who consented ceased to hold their positions as directors of the First Nation Society as of April 21, 1996, when they were defeated in an election for Chief and Council of the KLFN. After that time, they had no authority to instruct counsel on behalf of the KLFN or the First Nation Society. Ms. Kennedy's affidavit deals extensively with events in 1995 and 1996 when she was acting for the KLFN and the First Nation Society. While she does not say when the consent of the three directors was obtained, it is obvious it was recently, as the affidavit is sworn on November 4, 1998. When these directors purported to consent to the Kennedy affidavit they had no authority to do so on behalf of the KLFN or the First Nation Society to whom the privilege belonged.
It is argued that Mr. Gauthier and his counsel's answers on his cross-examination relative to Parlee McLaws withholding documents constituted an implied waiver of privilege by the KLFN and the First Nation Society. Ms. Kennedy's affidavit goes far beyond what might be covered by the alleged implied waiver. More specifically, the answers do not justify Ms. Kennedy, at the request of counsel for parties adverse in interest to her former clients, volunteering an affidavit disclosing whether Parlee McLaws had documents belonging to the KLFN or the First Nation Society. The cases to which I have made reference make it clear that more than an implied waiver is required in order to do so. Express consent was required and it was not obtained.
The plaintiffs invoke the doctrine of fairness and consistency. This doctrine goes to the question of waiver which, as I have said, cannot be relied upon by counsel in voluntarily giving evidence about privileged information. In any event, fairness and consistency requires disclosure in limited circumstances, for example, when disclosure of part of a communication waives privilege over the whole communication or where reliance by a party on legal advice as part of his claim or defence, waives privilege over the legal advice. See S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 35 C.P.C. 146 (B.C.S.C.), at page 149, per McLachlin J.
It is suggested that some of the information in the affidavit was already known publicly. That does not justify disclosure by the solicitor. The information was obtained by the solicitor in the context of a solicitor and client relationship and/or in contemplation of litigation. The fact that the information comes from a public meeting or from public sources may make it possible for someone else to testify about it. However, the solicitor may not.
I have read the Kennedy affidavit. There are small portions that are not privileged. However, they are not substantive and do not address the question in issue, whether Parlee McLaws has documents and is withholding them. No useful purpose would be served by severing the affidavit and permitting the limited inconsequential portions to be filed, while excising the approximate 90% that is subject to privilege. The affidavit contains a few paragraphs referring to events after June 1996, but the record is not clear as to when Ms. Kennedy precisely ceased acting for the KLFN and First Nation Society. Without definite evidence as to when that retainer ended, I am not prepared to say that privilege is not applicable over the entire series of events referred to in the affidavit.
The motion for leave to file the affidavit of Ms. Kennedy under subsection 84(2) is dismissed. The parties shall contact the Registrar to arrange for a conference call to dispose of the matter of costs.
1 84. . . .
(2) A party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application, except with the consent of all other parties or with leave of the Court.