Solicitor and client privilege
Long before privacy legislation, the courts recognized the need to protect certain communications such as those between individuals and lawyers.
Solicitor and client privilege arises whenever a person goes to a lawyer to seek information concerning their legal rights. This “legal advice” privilege encourages individuals to have a full and frank conversation with a lawyer, so that they can learn what their rights are and have full access to legal advice. As long as these discussions take place in confidence, they are protected. The lawyer must never disclose what was discussed.
The only clear exception to this rule is where the communication is itself a crime or is in furtherance of a crime. For example, the Supreme Court of Canada held that the communications between a person and a lawyer where the person had lied about his financial means in order to obtain legal aid were not protected.
What about a situation where freedom of information legislation seems to require a party’s legal advice be produced? This happened in one case where a woman made a complaint before the Ontario Human Rights Commission against her former employer. The Commission, after considering a legal opinion provided by its in-house counsel, decided not to proceed with most of the complaint. On appeal, the woman wanted that legal opinion produced. The Supreme Court of Canada ruled that legislation purporting to limit or deny solicitor-client privilege will be interpreted restrictively. Unless the legislation specifically requires that legal opinions be produced, they are to remain protected by solicitor-client privilege.
A grey area is whether communications between one’s lawyer and another professional (like the client’s doctor or accountant) are protected by privilege. If the communication takes place in the context of a lawsuit, the communication will be protected by litigation privilege (see below). Otherwise, these communications are only protected if they are “in furtherance of a function which is essential to the existence or operation of the relationship between the solicitor and the client.” For a doctor who was being investigated by the College of Physicians and Surgeons, this meant that medical reports provided by other doctors to the College about that doctor had to be produced and were not protected by solicitor-client privilege.
Also note that while all privileged communications are protected, it is always open to a client to waive this privilege by telling someone else what their lawyer told them (e.g. the client told her family doctor). Unless this is done with a clear expectation that this second telling is meant to be confidential, it may lose its confidential protection.
1College of Physicians of B.C. v. B.C. (Information and Privacy Commissioner)  B.C.J. No. 2779
Implied undertaking of confidentiality
In a personal injury claim, to fully assess their case, the defendant can demand a lot of information and documentation from the plaintiff. These can include all medical records from years before the accident up to the time the plaintiff settles or goes to trial, all school records, personal notes and diaries (unless the diary was completed only for the lawsuit, in which case it may be subject to litigation privilege), even the plaintiff’s computer hard drive.
What happens to those documents and information once they’re produced to the defendant?
For example, could the defendant take the information about undeclared tips or cash jobs and report the plaintiff to the Canada Revenue Agency? Could the defendant use the plaintiff’s confidential business information to compete against them? In a 1995 leading case Hunt v. T&N plc, the BC Court of Appeal held that information and documents produced in the lawsuit must remain confidential and cannot be used for any purpose outside of the lawsuit without obtaining the owner’s permission or a court order.
But the Hunt decision dealt with disclosures that were made before a case went to trial. If the confidential information is disclosed in an open trial, reporters and the general public get involved and it’s hard to contain. To maintain confidentiality, a few options currently exist. A party can:
1) sue using just their initials;
2) ask the judge to hold the entire trial or hearing in camera (quite rare);
3) ask the judge to restrict how the case is described by the judge and/or reported by the media; or
4) ask the judge to seal the file after the hearing.
The courts have spent many years developing the balance between protecting the privacy of people caught up in a lawsuit, and maintaining an open and accountable judicial process. With new privacy threats like widespread internet searching, it may be necessary to find new ways to preserve core privacy protections.
Because we have an adversarial system of law where each party must collect evidence to present to an impartial judge at trial, the common law has developed litigation privilege to keep each lawyer’s file from being “poached” by their adversary. To be protected under this privilege,
the documents must be obtained or generated for the “dominant purpose” of litigation, and litigation must be a reasonable prospect at the time the communications were made.
For example, after a motor vehicle accident, if ICBC arranges for witnesses to an accident to be interviewed, it is likely that notes of those interviews, including any statements provided by witnesses, will not be producible to the injured person. This is because ICBC will argue that the main reason for obtaining this evidence was to defend its insured against a future claim. Ironically, the more serious the accident, the more likely a claim will be brought, and the more likely the evidence provided to ICBC by witnesses will be privileged. It is therefore important for the injured person to retain a lawyer of his/her own fairly early on in order that he/she can have an equal opportunity to obtain evidence from key witnesses.
Unlike solicitor/client privilege which provides a permanent protection of the client’s confidentiality, litigation privilege lasts only until the end of the litigation.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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