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SCC decision reaffirms protection of solicitor-client privilege

|Written By Alex Robinson

In a pair of decisions, the Supreme Court of Canada has reaffirmed robust protections for solicitor-client privilege, while elevating litigation privilege.

Lawyer David Rankin says ‘it’s very clear that a very high standard is required to abrogate privilege.’
In the decisions released Friday morning, the SCC provided clarity as to when provincial regulators can abrogate privilege.

In Lizotte v. Aviva Insurance Company of Canada, the Supreme Court upheld a 2015 Quebec Court of Appeal ruling that determined a provincial regulator could not have access to information Aviva Insurance claimed was protected by litigation privilege.

Quebec’s damage insurance regulator, Chambre de l’assurance de dommages, had requested certain documents from Aviva about a claims adjuster in an ethics enquiry. Aviva withheld some documents citing litigation privilege, as a client had brought legal proceedings against the company, which involved the same claims adjuster.

The Supreme Court found the regulator could not abrogate litigation privilege by inference and that “clear, explicit and unequivocal language is required in order to lift it.”

By applying the same standard to litigation privilege as solicitor-client privilege, Adam Dodek, a law professor at the University of Ottawa, says the decision brings litigation privilege closer to solicitor-client privilege, which is considered more absolute.

In a 2006 decision, Blank v. Canada, the Supreme Court distinguished the two privileges as distinct doctrines, deeming litigation was a lesser privilege.

“The court pays homage to that decision, but these two decisions bring the doctrines closer together and collectively continue the trend of strengthening solicitor-client privilege and elevating litigation privilege to a status closer to solicitor-client privilege,” says Dodek, who wrote Solicitor-Client Privilege, a book referenced in the Supreme Court decision.

“The fact that same test is embraced for abrogating litigation privilege as for solicitor-client privilege is significant.”

In the second decision released Friday, Alberta v. University of Calgary, the court determined a provincial regulator could not abrogate solicitor-client privilege on inference.

“…solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal,” Justice Suzanne Côté wrote for the majority in the decision.

The decision concerned a dispute that arose when a former employee, who filed a lawsuit against the University of Calgary for wrongful dismissal, requested information about her in the university’s possession. The university released some information, but withheld some records, which it considered protected by solicitor-client privilege.

A delegate from the province’s privacy commissioner then ordered the university to produce the records.

At issue was whether a section of the province’s freedom of information legislation, which required records be handed over to the privacy commissioner despite “any privilege of the law of evidence,” trump solicitor-client privilege.

The Supreme Court found that the legislation was not clear enough to abrogate privilege.

“In the present case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent to set aside solicitor-client privilege,” Côté said.

“It is well established that solicitor-client privilege is no longer merely a privilege of the law of evidence, having evolved into a substantive protection.”

David Rankin, a lawyer with Osler Hoskin & Harcourt LLP, says the decision reaffirms the protection of solicitor-client privilege.

“The way Justice Côté reasoned, it’s very clear that a very high standard is required to abrogate privilege, which is a very significant development,” says Rankin, who represented the Canadian Bar Association in its intervening on both cases.





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