Law Times

Law Times • February 13, 2017 Page 9 www.lawtimesnews.com Regulators may demand broader powers SCC rulings to prompt legislative changes? BY DALE SMITH For Law Times L awyers are hailing two de- cisions from the Supreme Court of Canada rein- forcing the rights of solic- itor-client privilege and litigation privilege. However, they note that it may give rise to regulators demanding broader production powers from legislatures. In November, the Supreme Court of Canada's companion decisions in Lizotte v. Aviva In- surance Company of Canada, and Alberta (Information and Privacy Commissioner) v. Uni- versity of Calgary, reinforced the notion of privilege when it came to compelling the produc- tion of documents. "This is another robust hold- ing by the Supreme Court of Canada that recognizes the fun- damental importance of solici- tor-client privilege, particularly in response to a request for pro- duction from a regulator," says Christopher Naudie, partner with Osler Hoskin & Harcourt LLP in Toronto, of the Alberta decision. "From the bar, we see this as a welcome ruling and a welcome protection of solicitor-client privilege, and also a ruling that underscores that solicitor-client privilege stands at the top of [the] hierarchy of privileges and should be accorded special pro- tection given its fundamental importance to the administra- tion of justice." In the Alberta decision, the court ruled that the statutory language used by the Informa- tion and Privacy Commis- sioner's office was not explicit enough to grant it access to doc- uments under solicitor-client privilege, while in Lizotte, the court ruled that documents re- quested by the provincial insur- ance regulator were protected by litigation privilege. In Lizotte, Naudie says that the decision provided some clar- ification as to the function and importance of litigation privi- lege. This is particularly crucial, he says, because it reaffirmed a class privilege that doesn't de- pend on case-specific balancing of interests and can be asserted against third parties including regulators. That privilege can include communications with third parties, he says. "From the perspective of the litigation bar, this is a welcome ruling because it recognizes again a robust protection in fa- vour of litigation privilege and will be of particular help to companies or individuals that are the subject of regulatory inquiries, because they will be able to assert a broad protection in respect of their communica- tions with counsel, experts, wit- nesses and other third parties who are assisting their defence, and that that privilege can be as- serted against a regulator," says Naudie. Previously, there had been some competing authority as to whether litigation privilege could be asserted against regula- tors, Naudie adds. "This pair of decisions con- firm the continued strength of solicitor-client privilege and further strengthens litigation privilege," says Adam Dodek, professor at the University of Ottawa Faculty of Law and au- thor of Solicitor-Client Privi- lege, which was referenced by the SCC in the Lizotte decision. "More than a decade ago in Blank v. Canada, the Supreme Court separated solicitor-client from litigation privilege. Lizotte brings litigation privilege closer to solicitor-client privilege." Currently, there are instances where a regulator can request the production of documents, and in the Alberta case, the rule was that a body must produce documents "despite privilege of the law of evidence." The Supreme Court ruled that this statutory language was not express enough to override solicitor-client privilege, and that solicitor-client privilege is no longer merely a privilege of the law of evidence but a sub- stantive right that is fundamen- tal to the proper functioning of our legal system. "For lawyers, the effect of the two decisions is that absent express statutory override, nei- ther privilege can be effectively challenged let alone pierced by any administrative official," says Dodek. "Only a judge has the sufficiently hallowed status to view and adjudicate privilege claims." Audrey DeMarsico, partner with Hansell LLP in Toronto, notes that litigation privilege is not expressly protected under the Quebec Charter of Human Rights and Freedoms in the same way that solicitor-client privilege is, and the Supreme Court ruled that it was of fundamental im- portance and was subject to the same interpretations that ex- ceptions must be explicitly con- strued. Lizotte also has the ef- fect of harmonizing the rules of privilege around Canada. The decisions also follow a trend by the Supreme Court that has not only been recognizing the fundamental importance of these privileges but that any ex- ceptions need to be construed very narrowly. "There's always been this ten- sion between the need of inves- tigators to have access to materi- als and the desire on the part of private parties to protect their privileged information," says DeMarsico. "This is really clarifying the interpretation of laws that do FOCUS CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com You work hard to ensure your clients get the best possible settlements. Help them maintain their income-tested government benefits/credits by encouraging them to structure! OAS BENEFIT HYDRO REBATE SENIOR HOMEOWNERS' PROPERTY TAX GRANT ONTARIO TRILLIUM BENEFITS HST/GST CREDIT WITHOUT A STRUCTURE GOVERNMENT BENEFITS ARE THROWN AWAY CANADA CHILD BENEFIT McKellar puts more money in your client's pocket GIS RDSP BOND/ GRANT Untitled-6 1 2017-01-10 2:51 PM Audrey DeMarsico says a pair of SCC rulings will make people more confident in their ability to respond to requests for informa- tion from government bodies. See Revision, page 12

• Cover