Brass v. Canada

Brass v. Canada
Court (s) Database
Federal Court Decisions
Date
2011-09-30
Neutral citation
2011 FC 1102
File numbers
T-3134-91
Decision Content
Date: 20110930
Docket: T-3134-91
Citation: 2011 FC 1102
BETWEEN:
ALPHEUS BRASS, FLOYD GEORGE,
RALPH THOMAS, RAYMOND CATT,
STEVE YOUNG, WILLIAM JOHN THOMAS, SAM GEORGE, DORIS GEORGE,
REGINALD WALKER, ROBERT WALKER, FRANK TURNER, ALBERT PACKO
AND CLARENCE EASTER,
SUING ON THEIR OWN BEHALF
AND ON BEHALF OF
ALL OTHER MEMBERS OF THE CHEMAWAWIN FIRST NATION, AND THE CHEMAWAWIN FIRST NATION (NOW KNOWN AS CHEMAWAWIN CREE NATION)
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
and
THE GOVERNMENT OF
MANITOBA
Third Party
REASONS FOR ORDER
LAFRENIÈRE P.
Background
[1] The motions before the Court concerns three files: Brass et al v HMTQ (T-3134-91) (brought by the Chemawawin Cree Nation (Chemawawin)), Ross et al v HMTQ (T-299-92) (brought by the Opaskwayak Cree Nation (OCN)), and Mercredi et al v HMTQ (T-300-92) (brought by the Grand Rapids First Nation (
Grand Rapids
)). For ease of reference, the proceedings shall be referred to as Brass, Ross and Mercredi in these reasons. Chemawawin, OCN and
Grand Rapids
shall jointly be referred to as either the Plaintiffs or the First Nations.
[2] Although the waters have been muddied with an excess of arguments by counsel, the issue at hand is essentially one of the existence and waiver of privilege. During the course of a protracted discovery process, the Plaintiffs came into possession of almost 100 documents alleged to be privileged by the Defendant, Her Majesty the Queen (
Canada
).
Canada
maintains that the majority of the documents were inadvertently produced after being included in Schedule I of their Affidavit of Documents. The balance of the documents are said to have been obtained by the Plaintiffs by other, unknown means.
[3]
Canada
seeks an order for the return of all their privileged documents. The Plaintiffs have in turn brought their own motion for an order requiring
Canada to produce a number of other documents over which
Canada
has claimed privilege and has not produced.
[4] The parties’ motions were heard together on common evidence. Consequently, these reasons, with such variations as required to account for particular circumstances applicable to each group of Plaintiffs, will also apply to Ross and Mercredi, and a copy shall be placed in both files.
[5] For the reasons that follow, I conclude that the Plaintiffs’ motions should be dismissed, and that
Canada
’s motions should be allowed in part. In summary, while
Canada has failed to properly establish litigation brief or settlement privilege in regards to certain documents produced to the Plaintiffs, all documents subject to solicitor-client privilege should be returned to
Canada
.
[6] Since it appears that documents were produced by
Canada
through inadvertence, I also find that there was no waiver of privilege, and certainly no implied waiver, requiring further production of privileged materials. Further, the Plaintiffs cannot rely on their illegitimate possession of privileged documents to justify further production.
[7] An order disposing of the parties’ motions, consistent with these reasons, shall be issued in each file.
I. Facts
[8] This case’s history is long and, for the purposes of the motions, is divided into two distinct periods. The first is the time period leading up to actual litigation, where the parties were both dealing with the fallout of the Manitoba Rapids Hydro Project. The dispute in the present motions centres on the relationship between the parties, how and if information was shared, and the intent behind the creation of a significant number of documents. The second period began in 1992, when the Plaintiffs filed a claim against
Canada
. During this time, significant issues arose regarding the production of documents, specifically why privileged documents were produced by
Canada
to the Plaintiffs, how the Plaintiffs managed to obtain other privileged documents, and whether they should have access to more.
A. 1960- 1992
[9] The genesis of the dispute originated half a century ago. While the basic facts are not contentious, how they should be interpreted is at the crux of the debate. In the 1960s, Manitoba Hydro undertook to build a dam on the
Saskatchewan River . At that time it was known that the dam would cause flooding to reserve land held by
Canada
for what is now the OCN (previously known as The Pas Indian Band), the Chemawawin and the Mosakahiken Cree Nation (known then as the Moose Lake Indian Band). During construction of the dam, the
Province of
Manitoba (
Manitoba
) wanted to extend a provincial highway and run a transmission line through the reserve of the Grand Rapids First Nation (also known as the Misipakisik Cree Nation).
[10]
Canada required
Manitoba
and Manitoba Hydro to enter into compensation agreements with the affected bands for the lands use and the negative effects which flowed from that. These negotiations took place during the early 1960s. The agreements were contained in letters of intent.
Canada
, acting through the Department of Indian Affairs and Northern Development (DIAND), arranged the necessary expropriations of land and formalized additions to reserves pursuant to the compensation arrangements. In the case of
Grand Rapids , some arrangements were made without the involvement of
Canada
.
[11] Almost immediately after the deal closed, the First Nations involved made it known that they felt the arrangements were not satisfactory and that all the negative effects of the hydro project were not being compensated. In order to seek a better deal, the First Nations secured funding from
Canada
for, at the very least, research and related activities. A Contribution Agreement outlined the conditions attached to this funding.
[12] Some level of negotiations between the First Nations,
Manitoba
and Manitoba Hydro took place. The First Nations set up the Special Forebay Committee (SFC) to represent their interests. Its purpose was to act in a variety of capacities, including negotiation, litigation and the provision of information. At first,
Canada
had some role in the negotiations, but by the time they broke down was no longer involved.
[13] In May of 1980, the First Nations filed a statement of claim against
Manitoba
and Manitoba Hydro.
Canada was notified by the First Nations in a letter dated May 2, 1980, that
Manitoba and Manitoba Hydro intended to file Third Party Claims against
Canada
.
[14] Around this time, the First Nations obtained legal counsel through Mr. John Wilson, who is the principal affiant for the Plaintiffs in the present motions. In March 1982, Mr. Wilson authored a forma legal opinion received by both the First Nations and
Canada
. As explained later in these reasons, the parties disagree as to who actually retained him to do so. While indicating that he was retained to institute an action against Manitoba and Manitoba Hydro, Mr. Wilson states that in his legal opinion that: “the Federal Government is without a doubt a responsible party and in all likelihood must be joined as a defendant in the action by the first two defendants on a third party notice…”: Exhibit G to the Affidavit of Glenn A. Bloodworth affirmed on September 23, 2009 (Bloodworth Affidavit).
[15] Over this period, there were a number of other indications, via letter, position papers and other communications, that the First Nations considered Canada to be liable. Without avoiding involvement in the affair completely,
Canada
continued to maintain that it was not liable. For instance, in a letter dated December 23, 1983, the Minister of DIAND responded to concerns recently expressed in a position paper submitted by the First Nations: Bloodworth Affidavit,Exhibit J. In his letter, the Minister underlined the need for negotiations, designating a member of Parliament, a government lawyer, Mr. Craig Henderson, and Mr. Glenn Bloodworth as federal representatives, who could assist the Bands in bringing resolution to the issue. The Minister also wrote as follows: “Should definitive evidence arise during the negotiations proving a failure by
Canada
to fulfill its legal obligations, the Federal Government will negotiate a reasonable and just redress with the Forebay Bands”. The Minister indicates, however, that he does not believe
Canada has an obligation to participate in any ultimate compensation settlement since
Canada
was not a party to the Hydro project.
[16] Around the time Mr. Wilson’s legal opinion was shared, Canada created the Manitoba Northern Flood Agreement Office (later called Manitoba Resource Developments Impact Office) (MRDIO), whose mandate included support to First Nations implementing compensation agreements with third parties.
[17] Three of the First Nations chose to incorporate the SFC on April 6, 1984. Although OCN did not join the incorporation, it remained involved as a member band.
[18] In 1985, the SFC obtained new counsel, Morris Kaufman, and other professionals to advise them, including E.E.Hobbs and Associates (E.E. Hobbs). The principal of E.E. Hobbs was a former DIAND employee.
[19] On May 30, 1985, the SFC asked
Canada
to “stop the running of time” so that the statute of limitations would not apply to the time then being spent in negotiations. DIAND’s Deputy Minister wrote that Justice Canada had advised that the government could not contractually waive such provisions. However, this should not preclude continuing negotiation: Bloodworth Affidavit, Exhibit N.
[20] Further studies, correspondence and position papers were pursued and exchanged. The theme continued – the First Nations produced reports from consultants and lawyers which said
Canada
was liable in this matter and failed in its fiduciary duty. The government denied liability, but stated it was committed to supporting the negotiation process. Again, the Minister reiterated that if definite evidence were to arise as
Canada
’s liability, they would investigate and negotiate a resolution. At this time, the government was also producing internal documents – both from lawyers and lay employees – on this issue. Throughout the process, lawyers from the Department of Justice had been providing legal opinions to
Canada
, their client, having received requests from a range of officials in DIAND. They were also present during meetings with the First Nations and their counsel. The most notable figure was Mr. Craig Henderson, lead counsel from 1980 – 2003, although he was assisted by others, including Ms. Barbara Shields (from 1984-1986). Mr. Ian Gray, with DIAND Legal Services,
Ottawa
, also provided opinions in the late 1980s and early 1990s.
[21] Eventually, talks with
Manitoba and Manitoba Hydro resumed, and new agreements were signed with the Chemawawin, OCN and
Grand Rapids
in 1990 and 1991.
Canada
was not directly involved in negotiations at this point. Statements of Claim were filed against
Canada shortly thereafter: Chemawawin on December 18, 1991, and OCN and
Grand Rapids
on February 5, 1992.
Plaintiffs’ Interpretation of the Events leading to Litigation
[22] Nearly all the Plaintiffs’ evidence relates to the pre-litigation period. As stated earlier, Mr. Wilson, the First Nations’ counsel, was the principal affiant. The other witness,Patricia Turner, was the president of the SFC and then Chief of the Misipawik First Nation during the 1980s. Her affidavit adds very little to the account, generally echoing Mr. Wilson’s beliefs as to the common interest of the parties and the consequences of
Canada
’s failure to disclose to the First Nations the information promised.
[23] The First Nations and their two deponents characterize this period as one of cooperation between the parties. Mr. Wilson repeatedly states that his understanding was that
Canada
would share with them all relevant information; in other words, there was no expectation of confidentiality. He suggests that he himself was retained by
Canada , which would explain why
Canada
received a copy of his opinion in 1982. He also notes that all the funding for his retainer and fees were obtained from
Canada
. In effect, the legal opinion sought for the First Nations had to be shared with
Canada
.
[24] The Plaintiffs interpret this sharing of factual and legal information to be evidence of the development of a joint strategy, that
Canada
was a full partner in their negotiations. The Plaintiffs assert that
Canada
had opened all their files to them. Lawyers met to share opinions. They point to the Minister’s commitment that, were it eventually to be established that
Canada was legally liable, a resolution of
Canada
’s responsibility would be effected through negotiation rather than litigation.
[25] Oddly, the Plaintiffs’ deponents also allege that throughout the time of cooperation,
Canada
was keeping legal opinions and other relevant facts from them. Their evidence stems from the privileged documents which are at the centre of this motion. The Plaintiffs stress that
Canada
knew, and complained, about the inadequacy of the deal shortly after its completion without notifying the First Nations. Specifically, they felt that the letters of intent were vague and band counsel was not adequately informed.
[26] The Plaintiffs also believe that the documents they now possess show that during this period Canada was in possession of opinions and briefing notes which indicated it was aware of a fiduciary duty to the First Nations. Despite this,
Canada
told them that it was not liable – information the First Nations claim they relied on to their detriment.
[27] Finally, the Plaintiffs emphasize that they received funding from
Canada
as evidence that there was no contemplated litigation. In the words of Patricia Turner, they were not apt to “bite the hand that feeds them”.
Canada’s Interpretation of the Events leading to Litigation
[28]
Canada
’s principal affiant for this period is Glenn A. Bloodworth, a former employee of DIAND. He occupied various positions in the department, including the positions of Director of what became MRDIO in 1982, and the Director of the Indian Environmental Protection Branch from 1986-1992. Significantly, all of his positions involved flooding issues in
Manitoba
.
[29]
Canada
submits that the facts show that 1979 to 1991 was a pre-litigation period when the government acted with the belief that litigation was impending.
Canada
’s motive during this time was two-fold: to help the First Nations come to an adequate agreement and to protect itself from liability. There was thus a dynamic tension: the First Nations continually advised
Canada as to their position that the government was liable for flooding damages and
Canada
refused to accept it. There was no agreement regarding alleged liability.
[30] Mr. Bloodworth states that in order to justify the continued funding pursuant to the Contribution Agreement, the First Nations had to show that they had a legitimate complaint. They provided DIAND with a plan regarding research, investigation and representation, and were required to provide an up-to-date legal opinion. Mr. Wilson was the designated representative of the First Nations. The single legal opinion provided to
Canada
was on instruction of the First Nations.
[31]
Canada
also points out that the funding provided for negotiations did not extend to negotiations. This was something the First Nations would have to access through DIAND’s head office.
[32] There is a fundamental rift between the parties on the openness of
Canada
’s files.
Canada
disputes that any promises were made to share all information, including legal opinions. Mr. Bloodworth asserts that there was no expectation of confidentiality or that there would be no restrictions in the sharing of information. As an example, he states that in 1985, when E.E. Hobbs and Associates sought access to DIAND’s archives, this access was limited and steps were taken to ensure that legal opinions and confidential information were not made available: Bloodworth Affidavit, para. 46. He further notes that no Department of Justice files were made available to the Plaintiffs and that a former deputy minister informed the SFC that such opinions were for DIAND’s own information. Mr. Bloodworth maintains that privileged documents cannot be released without the consent of the client – the upper echelons of management within DIAND.
[33] In short, the government characterizes its relationship with the First Nations in a much different manner than do the Plaintiffs.
Canada
denies that there was any explicit fiduciary duty in relation to this issue. Any obligations were simply related to the fact that reserve lands had been negatively impacted and the government had programs to assist First Nations in dealing with those impacts and in securing compensation.
B. 1992 – Present
[34] Litigation was commenced against
Canada by Chemawawin in December 1991, followed by OCN and
Grand Rapids
in February 1992. Almost twenty years have passed and the parties are still at the discovery stage. A number of procedural events have transpired, including the threat of dismissal for delay. In fact, the proceedings were dismissed in December 1998, but reinstated by the Court of Appeal in March 2000. Relevant to this motion, however, are the events surrounding the production of documents. Almost all the evidence as to the events of this post-litigation period are found in the affidavit of Mr. André Bertrand, case manager with the DIAND Litigation Management and Resolution Branch (LMRB) who has been assigned to these files since April 2008.
[35] A brief overview of the history of documentary discovery in the proceedings is required to place the parties’ motions in context.
[36] In Brass, affidavits of documents were sworn in 1997 and 1998. Ross and Mercredi, which were handled by different counsel, had a slower start. Discovery of documents did not begin until 2000. The Plaintiffs’ affidavits of documents in Mercredi and Ross were served on
Canada
on December 7, 2001. Copies of documents were included in the Plaintiffs’ Schedule I throughout the summer and fall of 2002. Affidavits of documents for these two matters were served by
Canada
on the Plaintiffs on July 18, 2002, and copies of documents from Schedule I were provided on September 26, 2002. Examinations for discovery were only conducted in Ross, running from 2002 to 2005.
[37] In 2004, Mr. Schachter took over as counsel of record in both Ross and Mercredi.
[38] In January 2005, the Plaintiffs served unsworn Amended Affidavits of Documents for both matters.
Canada
swore supplementary affidavits in both matters on February 24 and 25, 2005, and served the Plaintiffs on March 30, 2005. Copies of documents in Schedule 1 were provided electronically and in hard copy.
[39] Meanwhile, in Brass, actual production of documents did not occur until June, 2004, when
Canada
received the “Chemawawin Document Record”. At that time, counsel for the Plaintiffs advised that over 300 of the documents had gone missing, at least two of which appeared to contain privileged material belonging to
Canada
. Another document, not included in counsel’s letter, also appeared privileged. This is discussed in greater detail immediately below.
[40] From 2004 to 2006, no active steps were taken in Ross and Mercredi while settlement discussions were being pursued. In Brass, a stay of proceedings was in effect from 2000 to 2006 for similar reasons. On September 22, 2006,
Canada
advised that it saw no further basis to discuss settlement.
[41] In March 2007,
Mark
Underhill assumed conduct of the Brass file from previous counsel, Jack London, and advised
Canada
that his clients wanted to proceed expeditiously.
[42] In May 2007, the Plaintiffs all agreed to waive the implied undertakings rule so that relevant documents disclosed by
Canada
in one case could be shared with all. That same month, the Plaintiffs in Brass asked for production of Schedule I documents from
Canada
for the first time. Same was provided electronically in October 2007 and in hard copy in November 2007.
[43] An Amended Statement of Claim was filed in Mercredi on November 21, 2007 (which
Canada contested), and in Ross on November 18, 2008 (which
Canada
did not contest). On December 3, 2008,
Canada
advised that it planned to file a motion for summary judgment based on latches and the expiration of the limitation period. This was the catalyst for the present motions.
[44] During a case management conference on December 16, 2008, it was determined that Canada’s motion for summary judgment could not be heard until an updated list of privileged documents was provided by Canada and the Plaintiffs were provided an opportunity to raise any objection.
Canada
reviewed its privileged documents in Schedule II and moved some to Schedule I (unprivileged) with redactions, serving the unsworn affidavits to the Plaintiffs on March 19, 2009.
[45] On June 3, 2009, the Plaintiffs in both Mercredi and Ross filed a notice of motion to compel documents. The Plaintiffs in Brass did the same on August 6, 2009.
[46] On September 24, 2009,
Canada
filed an amended Affidavit of Documents to make clear all the documents over which they claimed privilege.
Discovery That Privileged Documents Were Included in Schedule I
[47] Upon service of the Plaintiffs’ motions,
Canada
went on to review the documents in Schedule I and discovered that some of the documents contained therein were covered by privilege, yet had been produced. All but six were included in their original Affidavit of Documents, sworn in 2002. Having already made a phone call, counsel for
Canada
wrote to counsel for Mercredi and Ross on July 17, 2009, requesting their return. The Plaintiffs refused, denying that any privilege was attached and alleging that, to the extent there was, it had been waived.
[48] On conducting a similar privilege review in relation to the Brass files,
Canada
confirmed that those Plaintiffs were also in possession of several privileged documents inadvertently included on their Schedule I list. Counsel wrote asking for their return on July 29, 2009.
[49]
Canada
filed the present motions seeking a declaration that the documents in question were privileged and requiring their return in respect of all the files.
Documents Not Disclosed Yet in the Plaintiffs’ Possession
[50] In addition to the above documents, there were some documents belonging to
Canada
which the Plaintiffs obtained despite the fact that they had not been produced on discovery. The first indication of this appears to be when production was requested in Brass in 2004.
[51] Responding to a letter discussing an upcoming meeting, counsel for
Canada
wrote on May 13, 2004 expressing concern that they had not received the documents in Schedule I.Counsel also noted that the Plaintiffs had referenced a document authored by Caroline Marion dated July 25, 1991, and entitled “Proposed Departmental Position – Grand Rapids Forebay” (Marion Paper), which was included in the Plaintiffs’ Schedule of Documents, but not in any of the affidavits from Canada. Mr. Bloodworth asserts in his affidavit that this had been authored by a regional employee in response to settlement proposals which had been submitted by the Chemawawin and Masakahiken at the time. He also notes that to his knowledge the position never received approval from the Deputy or the Minister.
[52] Counsel for
Canada
asked for a copy of the document, concerned that it might be privileged.In a phone conversation on May 18, 2004, Mr. London, counsel at the time, told her he did not know how it was obtained.
Canada
’s counsel left on early maternity leave in July 2004, and the issue was not resolved.
[53] At the end of 2006, the Marion Paper came up again at a meeting, where counsel representing all of the Plaintiffs were present. Again, Mr. London denied knowing how it was obtained.
[54] The debate continued into 2008, after
Mark
Underhill
had assumed conduct of the Brass file. It came to Canada’s attention that the Plaintiffs in Brass had another privileged document when Mr. Underhill wrote to advise that he believed many of the documents in Schedule I were not privileged: Bertrand Affidavit, Exhibit Q. Further, Mr. Underhill indicated that privilege had been waived over a number of documents that would otherwise be protected. He referred to a summary of legal opinions which described legal opinions by various Justice and First Nations lawyers and maintained that
Canada
had waived privilege by making the substance of these opinions known. He went on to reason that, notwithstanding that document, the substance of these opinions had also been disclosed in other documents produced during discovery and, therefore, the full opinion had to be produced in either case. Finally, Mr. Underhill noted that he was in possession of two opinions not in Schedule II of Canada’s Affidavit of Documents, suggesting it was incomplete. One opinion was that of Ian Gray, a government lawyer.
[55]
Canada
responded immediately, requesting clarification as to the documents described and how they came to be in the possession of the Plaintiffs. Counsel reminded the Plaintiffs that privilege was claimed over the Marion Paper in the other two matters and that Jack London had already been asked how he came to have it.
[56] Mr. Underhill wrote to confirm that the legal opinions were “stand alone” and that he did not know how it, or the other documents, had come into the Plaintiffs’ possession. He also later confirmed that the summary document had no production number and provided it, with advice to his client redacted, to counsel for
Canada
.
[57] Once the motion to produce documents were filed in June of 2009, the Plaintiffs attached the entire Marion Paper and the summary of legal opinions to their motion records.
Canada
again wrote each party, noting that they had never seen those documents together at any time. Again, clarification was sought as to how the documents had been obtained. No answer was forthcoming.
II. Documentary Evidence in this Case
A. Generally
[58] The volume of documents in these proceedings is substantial information. According to Mr. Bertrand, over 6,000 documents have been collected in the database. This process is coordinated by LMRB that retains researchers to help counsel preparing documents for litigation. Mr. Bertrand discusses in his affidavit the logistical difficulties in doing this. He cannot determine how it was that privileged documents came to the Plaintiffs – whether there was a flawed review or problem in implementing it. Mr. Bertrand is adamant that disclosure of the privileged documents was not voluntary and that an LMRB case manager swearing an affidavit of documents would not have the authority to waive privilege in any event. Even a Justice Lawyer would need approval from the upper echelons of DIAND.
B. Documents at Issue in the Motions
[59] There are two principal sets of documents at issue in this motion. The first consists of documents which are already in the possession of the Plaintiffs. There are approximately 96 which
Canada
asserts are privileged, or partly so, for a variety of reasons and which they seek to be returned. As discussed above, most were included in Schedule I and produced by
Canada
, allegedly through inadvertence. The others were obtained by means which remain undisclosed by the Plaintiffs.
[60] The second set of documents is not yet in the Plaintiffs’ possession. The Plaintiffs, on the basis of documents already produced, and now claimed as privileged, seek further documents from
Canada
which they allege were wrongly kept from them during the alleged cooperation period.
[61] In both cases, some of the documents consist of legal opinions and communications between Justice
Canada
and DIAND officials. There are also references to such opinions in briefings authored by DIAND employees and confidential internal documents which discuss the relevant events, negotiations and settlement proposals and
Canada
’s potential liability..
[62] Most of the documents were created before the commencement of litigation.
III. Issues
[63] This motion engages two major questions:
1) Are the documents at issue privileged?
2) If they are, was there a waiver of privilege by
Canada
?
IV. Analysis
A. Are the Documents Privileged?
[64]
Canada
claims that all of the documents inadvertently produced and requested by the Plaintiffs are protected by solicitor-client privilege, litigation privilege and/or settlement privilege. Each assertion of privilege must be assessed separately.
Solicitor-Client Privilege
[65] This privilege applies to any communication so long as it: (i) is a communication between solicitor and client; (ii) entails seeking or giving legal advice; and (iii) is intended to be confidential by the parties (Solosky v Canada (1979) [1980] 1 SCR 821 (SCC) at 837).
[66] Solicitor-client privilege is “sacrosanct”. It is trite law at this point that the privilege has gone beyond a mere rule of evidence to become a substantive rule. The extent and rationale of this rule was discussed by the Federal Court of Appeal in Stevens v Canada (Prime Minister) [1998] 4 FC 89 FCJ No 794 (QL) (CA), citing to the leading decisions in Solosky and Descôteaux et al v Mierzwinski [1982] 1 SCR 860. Speaking for the Court, Justice Linden stated:
19 While the privilege has traditionally been regarded as a rule of evidence, it has evolved over the years and, in Solosky v. The Queen, the Supreme Court established that it had become a substantive right ... Dickson, J. (as he then was) stated:
Recent case law has taken the traditional doctrine of privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court room. The courts, unwilling to so restrict the concept, have extended its application well beyond those limits.
20 …. In Descôteaux et al. v. Mierzwinski Lamer J. (as he then was ) commented on the rationale in Solosky. In Lamer J.’s opinion the Court was not applying a rule of evidence, as there was no litigation or proceeding before a court in that case, but rather the Court was appealing to the doctrine of confidentiality, which was akin to the privilege in litigation. He went on to set out the substantive rule of confidentiality:
1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications 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.
21 Lamer J. outlined a very liberal approach to the scope of the privilege by extending it to include all communications made “within the framework of the solicitor-client relationship.” The protection is very strong, as long as the person claiming the privilege is within that framework. If it is merely a claim for confidentiality, the protection, though broader, is not absolute, and it must be determined with a different set of criteria.
[67] The above indicates the fundamental importance of this right of confidentiality to the legal system and the relationship between a client and solicitor. Justice Linden went on to confirm that the force of this rule applies as much to the government as it does to a private party:
22 A second preliminary matter that must be considered in resolving the problem before us is that the identity of the client is irrelevant to the scope or content of the privilege. Whether the client is an individual, a corporation, or a government body there is no distinction in the degree of protection offered by the rule. In the case of a corporation or government the precise identity of the client may be more problematic, which may give rise to difficulties in determining whether or not the privilege has been waived. Also, it may be difficult to determine whether the privilege has been lost in some cases, where it is unclear who may claim the privilege and who may waive it within a corporate or a government context. However, these difficulties do not affect the substance of the right. Furthermore, I can find no support for the proposition that a government is granted less protection by the law of solicitor-client privilege than would any other client. A government, being a public body, may have a greater incentive to waive the privilege, but the privilege is still its to waive.
(emphasis added)
[68] This important principle was confirmed in the context of a case involving First Nations in Samson Indian Nation and Band v Canada [1995] 2 FC 762 (CA) at paras 9-10:
The principles relating to solicitor and client privilege... apply regardless of whether the solicitor is in private practice or is a salaried or government solicitor...
... Contrary to the contention of the respondent Samson Band, solicitor-client privilege, therefore, is not to be interfered with except to the extent absolutely necessary, and any conflict should be resolved in favour of protecting confidentiality.
[69] This privilege attaches to documents as soon as a solicitor-client relationship begins; there is no need for pending litigation. It belongs to the client, not the lawyer: Smith v Jones [1999] 1 SCR at para 46.
[70] The Plaintiffs put much emphasis on the confidentiality requirement in privilege. They attempt to argue that there was no express agreement as to confidentiality and the conduct of
Canada
demonstrated they did not have it. This argument is flawed for several reasons.
[71] First of all, there is a presumption that this type of communication is meant to be confidential. In Metcalfe v Metcalfe, 2001 MBCA 35, 198 DLR (4th) 318 (CA), the Manitoba Court of Appeal overturned a motions judge’s determination that letters were not protected by privilege as they did not appear to be confidential or pass the test in Slavutych v Baker et al [1976] 1 SCR 254. In Slavutych the Supreme Court accepted Wigmore’s four conditions necessary to the establishment of privilege, which included that the communications must originate in confidence. Helper J.A. outlined the reason for the judge’s error:
11 In the present case... [t]hese letters are clearly written in the lawyer’s professional capacity and clearly offer legal advice relation to the action. The motions judge erred in his conclusion that the communications in question did not come within the Slavutych test for confidentiality as certainly solicitor-client privilege attached to them in the circumstances in which they were written.
12 In Sopinka, S.N. Lederman & A.W. Bryant, the Law of Evidence in
Canada
, 2d ed. (Toronto: Butterworths, 1999), the authors wrote at p.728, para. 14.42:
It has long been established that prima facie all four of Wigmore’s prerequisites are met in solicitor and client communication.
[72] See also Descôteaux et al v Mierzwinski, [1982] 1 SCR 860, where Lamer J. (as he then was) stated for the court at pp.870-71:
It is not necessary to demonstrate the existence of a person’s right to have communications with his lawyer kept confidential. Its existence has been affirmed numerous times and was recently reconfirmed by this Court in Solosky...
[73] Just as any other solicitor-client relationship, the communications between government lawyers and their client departments are meant to be confidential. On the basis of the evidence of Mr. Bloodworth and Mr. Bertrand, which was not shaken in cross-examination, I am satisfied that documents containing solicitor-client communication, both before and after the litigation was commenced, were intended to be kept confidential, and more importantly, that no decision was ever made, nor was any approval sought, to waive Canada’s solicitor-client privilege in these proceedings. I conclude that any disclosure of such information to the Plaintiffs, whether it be through inadvertence or negligence, was not authorized.
[74] The Plaintiffs’ own argument that the government withheld evidence from them support
Canada
’s position that it did not share the substance of its legal opinions. There is also no evidence of unrestricted access to such documents being provided the Plaintiffs. In fact, policies were in place to restrict access to privileged documents, and I am satisfied that they were complied with in this case.
[75] Finally, I note that the Plaintiffs cannot have access to legal opinions simply because they were expressed by the client in their own communications to superiors. There is clearly no involvement of a third party in this situation which might abrogate the privilege. This was unequivocally confirmed by Justice Tremblay-Lamer in Elomari v Canadian Space Agency2006 FC 863:
35 With regard to documents containing communications that did not take place between solicitor and client, but rather between public servants of the client department, the Court specified that where communications contain a description or discussion of legal advice sought or to be sought or of legal advice obtained, such communications are also privileged: Blank v. Canada (Minister of Environment) 2001 FCA 374, [2001] F.C.J. No. 1844 (C.A.)(QL).
[76] To summarize, those documents which describe communications between a solicitor and its client, DIAND, whether or not they were communicated through staff, are subject to privilege. This is very strong protection which has not been displaced by the Plaintiffs, notwithstanding their disclosure.
Litigation Brief and Settlement Privilege
[77] Litigation brief privilege is of a different breed than solicitor-client privilege. First and foremost, it is not a substantive rule but one simply of evidence. It does not command the same sacred status in our legal system and so must not be as tenaciously protected. The Supreme Court’s decisive statement on the fundamental differences between the two is found in Blank v
Canada
, 2006 2 SCR 319. Speaking for the majority, Justice Fish rejected the argument that litigation privilege is really a branch of solicitor-client privilege and thus should enjoy near equal protection:
26 Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege… The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.
27 Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.
28 R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation privilege and solicitor-client privilege:
It is crucially important to distinguish litig