Law Times

Page 12 February 13, 2017 • Law Times www.lawtimesnews.com provide for exceptions." DeMarsico says that the rul- ings will make people more con- fident in their ability to respond to requests for information from government bodies on the basis that they are not going to dis- close something subject to privi- lege unless there is explicit statu- tory language. Government bodies could include the auditor general, the Canada Revenue Agency, the Competition Bureau or an in- formation and privacy commis- sioner, such as in the Alberta case. Each body will try to interpret statutes as broadly as possible to get the documents they are seek- ing as part of an investigation. "It gives comfort to people who have those documents because we've seen this before where an auditor is requesting documents and people want to collaborate with the auditor," says DeMarsico. "It's not clear wheth- er something should be disclosed or not, and they don't want to be in the position of having to de- bate that point with the auditor and now they don't have to." With this ruling showing the need for explicit language to com- pel production, the question be- comes whether regulatory bodies, auditors or officers such as infor- mation and privacy commission- ers will turn to legislatures across the country to demand more ex- press statutory powers to compel those documents. "You're definitely going to see coming out of these cases some revision to laws, likely in the context of the Income Tax Act because there have been a few cases recently," says DeMarsico. "Depending [on] what the prior- ities are in a given province, then various jurisdictions might de- cide to really make explicit those exceptions. That's not necessar- ily a bad thing because again it gives clarity, and people don't want to be in a situation where it's not clear." Jeff Beedell, partner at Gowl- ing WLG (Canada) LLP in Ot- tawa, says that given that there are information and privacy com- missioners in all provinces as well as federal, he can see those com- missioners asking for remedial language to make it clear their ability to compel production. "In the Alberta case, it wasn't that if this information was pro- duced and reviewed that there was an intention to disclose in- formation over which proper so- licitor-client privilege was vested — it was a review process to as- certain whether the privilege was properly claimed, and it became a matter of difference between the University of Calgary and the commissioner's office, which they responded ultimately to the notice to produce records," says Beedell, who was Ottawa agent for counsel for the Information and Privacy Commissioner in the Alberta case. Beedell says he is uncertain whether that move would extend to Quebec. "I'm sure that the commis- sioners want to discharge their duties," he says. "They felt that their home statutes gave them this ability without having to go to court, so I would imagine they're looking for some legis- lative discretion and consider- ation." DeMarsico adds that the major caution that people have is that if they turn over a docu- ment where it wasn't required, it could be interpreted as waiving their privilege over the docu- ment and anybody could have access to it, which is why the de- mand for clear language is ulti- mately welcomed. LT Brown listed the obligations to the motions judge as counsel giving the same degree of as- sistance on the issues that they would give a trial judge, that the factums must be thorough and start with a concise overview before developing the material facts, with extracts from refer- ences to relevant documents, af- fidavits or transcript evidence. He also said that counsel must set out the relevant principles of law and explain how those prin- ciples apply to the specific case, and to give the motions judge assistance on understanding the remedies sought on the motion where applicable. Berg agrees with Brown's frustrations, calling it the "Hail Mary of the lazy lawyer," but he says that it was a problem before Hryniak as well. Berg says that one of the good things about the summary judgment trend is that it forces lawyers to learn their cases earlier. "You don't just meander through discovery and some time before trial you learn your case and hire an expert," says Berg. "It advances that work. Lawyers should do that. The mo- ment you get a case, you should be learning it and thinking about how to get an outcome for your client earlier, and that means putting the work in earlier." LT FOCUS Continued from page 8 Defendants more proactive as a result of ruling Revision to laws coming Continued from page 9 Bradley Berg says that, due to Hryniak, summary judgment is now considered in almost every case. © 2017 Thomson Reuters Canada Limited 00241ZX-85698-NK Start with Practical Law Canada – Corporate & Commercial Litigation Practical Law Canada – Corporate & Commercial Litigation offers you continuously maintained, up-to-date resources that contain the legal know-how that lawyers need to practise more efficiently, improve client service and never miss a step. 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