T-2215-90
William Weiler (Applicant)
v.
The Department of Justice, The Department off
Agriculture (Respondents)
INDEXED AS: WE/LER v. CANADA (DEPARTMENT OF JUSTICE)
(T.D.)
Trial Division, Cullen J.—Ottawa, June 27 and
July 3, 1991.
Practice — Privilege Solicitor-client — Application for
review of refusal to provide access to personal information
sought under Privacy Act — Applicant, Department of
Agriculture inspector, involved in decision to destroy shipment
of imported trees suspected of gypsy moth infestation — In
ensuing litigation Crown represented by Department of Justice
— Upon request for access to documents referring to appli
cant, production of letter from Justice solicitor to Agriculture
official denied on ground of solicitor-client privilege Com
plaint filed with Privacy Commissioner alleging letter contain
ing "libelous" references to applicant's credibility as witness
— Common law on solicitor-client privilege reviewed — Two
branches of solicitor-client privilege: legal advice privilege and
litigation privilege — Draft pleadings, notes of interviews with
witnesses, correspondence with witnesses and other material
used in conduct of litigation within litigation privilege —
Letters to officials of Department of Agriculture concerning
advice from solicitors and instructions from client within legal
advice privilege — Solicitor is Attorney General of Canada
and Department of Justice lawyers working under her auspices
— Client is executive branch of government, including various
ministries.
Privacy — Application for review under Privacy Act, s. 41 of
refusal to allow applicant access to personal information
sought pursuant to s. 12 — Production of letter from Crown's
solicitor relating to litigation arising from destruction of trees
ordered by Department of Agriculture refused under s. 27 as
subject to solicitor-client privilege — Applicant, government
tree inspector, says Justice lawyer wrote letter containing
libelous statements as to his credibility as witness — Review
of common law on solicitor-client privilege — Once solicitor-
client privilege between Justice lawyers and Agriculture offi-
cials established, documents individually examined — Criteria
for solicitor-client privilege met.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Plant Quarantine Act, R.S.C. 1970, c. P-13.
Privacy Act, R.S.C., 1985, c. P-21, ss. 12, 27, 29, 41.
CASES JUDICIALLY CONSIDERED
APPLIED:
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; Susan
Hosiery Ltd v. Minister of National Revenue, [1969] 2
Ex.C.R. 27; [1969] C.T.C. 353; (1969), 69 DTC 5278;
Greenough v. Gaskell (1833), 39 E.R. 618 (Ch. D.);
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.
CONSIDERED:
Bertram S. Miller Ltd. v. The Queen, [1985] 1 F.C. 72;
(1985), 18 D.L.R. (4th) 600; 15 C.R.R. 298 (T.D.); revd
[1986] 3 F.C. 291; (1986), 31 D.L.R. (4th) 210; 28
C.C.C. (3d) 263; 1 C.E.L.R. (N.S.) 16; 69 N.R. 1
(C.A.); leave to appeal denied [ 1986] 2 S.C.R. v.
REFERRED TO:
Reg. v. Cox and Railton (1884), 14 Q.B.D. 153; Canada
(Minister of Industry, Trade and Commerce) v. Central
Cartage Company et al. (1987), 10 F.T.R. 225
(F.C.T.D.).
AUTHORS CITED
Cross, Rupert and Trapper, Colin Cross on Evidence, 7th
ed., London: Butterworths, 1990.
Sopinka, John and Lederman, Sidney N. The Law of
Evidence in Civil Cases, Toronto: Butterworths, 1974.
APPEARANCE:
William Weiler on his own behalf.
COUNSEL:
Margaret N. Kinnear for respondents.
APPLICANT ON HIS OWN BEHALF:
William Weiler.
SOLICITORS:
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
CULLEN J.: This is an application for review
under section 41 of the Privacy Act, R.S.C., 1985,
c. P-21 ("the Act"). The applicant seeks review of
a refusal to provide him with access to personal
information sought pursuant to subsection 12(1) of
the Act. Production was denied on the ground that
they were exempt from release pursuant to section
27 of the Act, concerning solicitor-client privilege.
FACTS
In May, 1982, Bertram S. Miller Ltd. imported
a shipment of trees into Canada from the United
States. Acting under the authority of the Plant
Quarantine Act [R.S.C. 1970, c. P-13], Agricul
ture Canada ordered the trees to be destroyed,
because it suspected them to be contaminated with
gypsy moth larvae. At the time, the applicant in
this case was employed as an inspector with
Agriculture Canada, and he was associated with
the decision to destroy the shipment.
Subsequently, on December 23, 1982, Bertram
S. Miller Ltd. sued the Crown in this Court for
damages relating to the destruction of the trees.
The case, Bertram S. Miller Ltd. v. The Queen
[[1985] 1 F.C. 72], was tried by Mr. Justice Dubé
on April 2 to 4, 1985, who found in favour of the
plaintiff. His decision was appealed to the Federal
Court of Appeal, which overturned the decision at
trial and held in favour of the Crown [[1986] 3
F.C. 291]. Leave to appeal to the Supreme Court
of Canada was denied on December 18, 1986
[[1986] 2 S.C.R. v]. The Crown was represented
in these proceedings by solicitors from the Depart
ment of Justice, namely Allison Pringle, Sandra
MacPherson and Derek Aylen.
On July 11, 1989, the applicant requested access
to a letter purportedly written by Mr. Pringle to an
official in Agriculture Canada in 1985, in relation
to the Miller litigation. He also requested "any
other written documentation" making reference to
him. A large amount of material was released to
the applicant, but certain materials were not
released because it was alleged they were exempt
from disclosure by virtue of solicitor-client privi
lege, pursuant to section 27 of the Privacy Act.
After the partial refusal, the applicant filed a
complaint with the Privacy Commissioner, in
which he stated that he wanted access to the letter
purportedly written by Mr. Pringle, on the ground
that it contained certain "libelous" references to
him concerning his credibility as a witness. The
Privacy Commissioner conducted an investigation
of the complaint pursuant to paragraph 29(1) (b)
of the Act. He found that the applicant's com
plaint was not justified, and that the materials in
question were protected by solicitor-client privi
lege. The applicant has now brought this section
41 application for review.
ANALYSIS
The materials sought by the applicant are
annexed as exhibits to a second affidavit sworn by
Mr. Pringle. This affidavit was filed on an ex parte
basis, sealed and kept separate from other Court
files by order of Mr. Justice Strayer, dated
November 30, 1990. It seems clear from the
affidavit of Mr. Pringle filed in response to the
applicant's motion that the materials are protected
from disclosure by solicitor-client privilege and
section 27 of the Act.
The applicant brings this proceeding pursuant to
section 41 of the Act, which reads as follows:
41. Any individual who has been refused access to personal
information requested under subsection 12(1) may, if a com
plaint has been made to the Privacy Commissioner in respect of
the refusal, apply to the Court for a review of the matter within
forty-five days after the time the results of an investigation of
the complaint by the Privacy Commissioner are reported to the
complainant under subsection 35(2) or within such further time
as the Court may, either before or after the expiration of those
forty-five days, fix or allow.
Certain personal information requested under sub
section 12(1) may be exempted from disclosure.
Section 27 of the Act permits the exemption of
certain personal information from release if that
information is subject to solicitor-client privilege.
27. The head of a government institution may refuse to
disclose personal information requested under subsection 12(1)
that is subject to solicitor-client privilege.
As solicitor-client privilege is not defined in the
Act, it is necessary to refer to the common law for
some background on the issue.
Solicitor-Client Privilege Generally
As Cross notes in his text Cross on Evidence
(7th ed., Butterworths), at page 428, there are two
distinct branches of solicitor-client privilege, the
legal advice privilege and the litigation privilege.
The legal advice privilege extends to all communi
cations, written or oral, passing between solicitor
and client for the purpose of obtaining legal
advice. It is not necessary for the purposes of the
legal advice privilege that the solicitor actually be
retained: preliminary communications made by a
potential client to a solicitor for the purposes of
retaining the solicitor are also privileged:
Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R.
860, at pages 876-877. As for the litigation privi
lege, it protects from disclosure communications
between a solicitor and client, or with third parties,
which are made in the course of preparation for
litigation, whether existing or contemplated, such
as experts' reports.
In Susan Hosiery Ltd v. Minister of National
Revenue, [1969] 2 Ex.C.R. 27, Jackett P. accepted
this distinction, and elaborated on the scope of
each branch, which he described as follows (at
page 33):
As it seems to me, there are really two quite different
principles usually referred to as solicitor and client privilege,
viz.:
(a) all communications, verbal or written, of a confidential
character, between a client and a legal advisor directly
related to the seeking, formulating or giving of legal advice
or legal assistance (including the legal advisor's working
papers, directly related thereto) are privileged; and
(b) all papers and materials created or obtained specially for
the lawyer's "brief" for litigation, whether existing or con
templated, are privileged.
Solicitor-client privilege is one of the fundamen
tal tenets of our system of justice, and in my view
its desirability and necessity are self-evident. Over
a century ago the policy rationale for the legal
advice branch of the privilege was stated by
Brougham L.C. in Greenough v. Gaskell (1833),
39 E.R. 618 (Ch. D.), at pages 620-621:
The foundation of this rule is not difficult to discover. It is
not (as has sometimes been said) on account of any particular
importance which the law attributes to the business of legal
professors, or any particular disposition to afford them protec
tion though certainly it may not be very easy to discover why a
like privilege has been refused to others, and especially to
medical advisors.
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.
The reasons behind the litigation privilege were
expressed by Jackett P. in Susan Hosiery, supra,
as follows (at pages 33-34):
Turning to the "lawyer's brief' rule, the reason for the rule
is, obviously, that, under our adversary system of litigation, a
lawyer's preparation of his client's case must not be inhibited
by the possibility that the materials that he prepares can be
taken out of his file and presented to the court in a manner
other than that contemplated when they were prepared. What
would aid in determining the truth when presented in the
manner contemplated by the solicitor who directed its prepara
tion might well be used to create a distortion of the truth to the
prejudice of the client when presented by someone adverse in
interest who did not understand what gave rise to its prepara
tion. If lawyers were entitled to dip into each other's briefs by
means of the discovery process, the straightforward preparation
of cases for trial would develop into a most unsatisfactory
travesty of our present system.
In Canada, the privilege has been elevated
beyond a rule of evidence, and accorded the status
of a substantive rule of law. The legal effect of the
privilege has been expanded beyond protection of
solicitor-client communications from disclosure in
legal proceedings involving the parties to any cir
cumstances where such communications may be
disclosed without the client's consent. In
Descôteaux et al. v. Mierzwinski, supra, the rule
of law was stated by Lamer J. [as he then was] as
follows (at page 875):
1. The confidentiality of communications between solicitor and
client may be raised in any circumstances where such com
munications 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.
As Lamer J. observes implicitly in paragraph 1,
the privilege is that of the client, not the solicitor,
and is privileged for all time: Sopinka and Leder-
man, The Law of Evidence in Civil Cases, at pages
177-181. The privilege may only be waived by the
client: see Cross on Evidence, supra, at page 435.
There are exceptions to the privilege. One is
informed waiver of the privilege by the client (see
Sopinka and Lederman, supra, at pages 177-181),
or implied waiver of a privileged document by its
use in court (see Cross, supra, at pages 438-439).
Communications between a lawyer and client are
not privileged when the client attempts to obtain
legal advice that would facilitate a crime or fraud:
Reg. v. Cox and Railton (1884), 14 Q.B.D. 153.
Also, the privilege extends only to communica
tions, and does not protect from disclosure of
certain facts discovered in the course of a solicitor-
client relationship by either solicitor or client:
Cross, at page 441.
Application of the Privilege to the Case at Bar
In my opinion, there is clearly a solicitor-client
privilege between the lawyers from the Depart-
ment of Justice and the Government of Canada in
the Miller case that shields the documents in
question from disclosure by virtue of section 27 of
the Act. The solicitor in this case is the Attorney
General of Canada, and those who work under her
auspices in the Department of Justice. The client is
the executive branch of the Government of
Canada, which includes the various ministries such
as the Department of Agriculture. See Canada
(Minister of Industry, Trade and Commerce) v.
Central Cartage Company et al. (1987), 10 F.T.R.
225 (F.C.T.D.), at pages 236-238.
Even if a solicitor-client relationship is estab
lished, however, each document for which privilege
is claimed must be demonstrated to meet the
criteria discussed above, i.e. confidentiality, for the
purpose of legal advice, or in contemplation of
litigation: Solosky v. The Queen, [1980] 1 S.C.R.
821, at page 837. I have now taken the opportunity
to carefully examine on a page-by-page basis the
affidavit and exhibits filed in affidavit No. 2 by
Allison Ross Pringle on December 7, 1990. This
affidavit describes in some detail each document
for which privilege is claimed. It has taken some
time to examine approximately 350 pages which
represent the copies of the exhibits to affidavit No.
2 of Mr. Pringle. In my view each is subject to
solicitor-client privilege and therefore not required
to be released under the Act.
These documents are, as alleged from the sub
missions of the respondents, draft pleadings, notes
of interviews with witnesses, correspondence with
witnesses, and other material used in the conduct
of the Miller litigation. This material clearly falls
within the litigation privilege. Other documents
include letters to the client represented by officials
of the Department of Agriculture concerning
advice from the solicitors and instructions from the
client. These clearly fall within the legal advice
privilege. No exceptions to the privilege are
evident.
It should be pointed out that the applicant
represented himself in this matter which always
makes it difficult for opposing counsel and certain
ly for the Court because it then becomes our
obligation to see to it that the individual's rights
are protected so far as is possible in the Court. The
applicant here raised the question or made the
suggestion that he was a client and therefore en
titled to all of the material with respect to the
earlier lawsuit of Bertram S. Miller Ltd. v. The
Queen. He of course was not a client but a witness
on behalf of the defendant. He was the witness
who answered questions on the examination for
discovery for his employer the Department of
Agriculture. Several other witnesses were inter
viewed including another employee of the Depart
ment who was in fact used as a witness at the trial.
It is for counsel conducting the trial to determine
what witnesses shall and shall not be called and in
this case they came to the conclusion that they did
not require the testimony of the applicant. The
only defendant in Bertram S. Miller Ltd. v. The
Queen was Her Majesty the Queen.
The applicant here was either unable to afford
counsel or unwilling to retain counsel and that in
my view is a severe handicap to anyone appearing
before the courts. In the course of his presentation
I asked him how he even became aware of the fact
that correspondence or notes might have referred
to him in an uncomplimentary way or, as he said,
made libelous statements. He indicated that some
fellow employee of the federal government had
given him this information, but there was no
affidavit evidence to this effect. Without counsel
and without any affidavit evidence in support of
his argument one is left to speculate only about the
consequences of having the individual who
informed him swear an affidavit to that effect.
This application is dismissed. In the circum
stances there will be no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.