Solicitor-Client Privilege and Email Chains: Conundrum or Continuum?

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[co-author: Natalie Tomaszczyk - Summer Student]

Introduction

Justice Mandziuk of the Alberta Court of Queen’s Bench recently presided over a case that involved an Access to Information Request and sealed documents that included communications between government lawyers and individuals working in various government departments. In Alberta (Municipal Affairs) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 274, Justice Mandzuik sets out the applicable test for determining whether solicitor-client privilege applies to government documents containing legal advice that were exchanged between various parties. The case shows that, in keeping with the paramountcy of solicitor-client privilege to our legal system and the lawyer-client relationship, the privilege should be interpreted broadly and holistically.

Facts

This case arose out of a Judicial Review application from an Order of the Adjudicator appointed by the Information and Privacy Commissioner. Mr. Crawford, the Respondent, made an Access to Information Request to the Alberta Emergency Management Agency (“AEMA”) pursuant to the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25. The request was made for records containing information about the 2013 flooding in the Town of High River. The AEMA provided some documents to Mr. Crawford, but claimed solicitor-client privilege over other documents which it refused to provide.1

The Adjudicator ordered that the documents be released to Mr. Crawford; the AEMA challenged the Adjudicator’s Order. Justice Gill granted a Consent Procedural Order directing the AEMA to provide these documents to the Court in a sealed envelope, without prejudice. The records would then be unsealed by the judge presiding over the main action so that the judge could determine whether the documents were in fact privileged.2 This procedure would maintain the privilege of the documents and stemmed from the case of Calgary (Police Service) v. Alberta (Information and Privacy Commissioner), 2018 ABCA 114. This case highlights that resolving the matter in this way is consistent with the court’s supervisory role and offers a reminder that the only way to determine whether the documents are subject to solicitor-client privilege is to examine the documents themselves.3

The Court’s Analysis

The issue before the Court in this part of the Judicial Review application was: “are the Sealed Records, in whole or in part, properly subject to solicitor-client privilege?”4

The Court begins its analysis by looking at the concept of solicitor-client privilege broadly. It turns to the case of Blank v. Canada (Minister of Justice), 2006 SCC 39, which states that solicitor-client privilege is fundamental to our legal system and our society. Clients must be able to have full and frank discussions with their lawyer so that their lawyer has all of the information that he/she needs in order to effectively represent the clients’ interests. Without solicitor-client privilege, clients would not be able to fully confide in their lawyers, for fear that the information they share with them would not be kept confidential. The case also explains the difference between solicitor-client privilege and litigation privilege, stating that the former applies to confidential communication between the lawyer and the client when legal advice is sought, whether or not this legal advice is provided in relation to litigation.5

The Court then looks at the cases of Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 and R. v. Campbell, [1999] 1 S.C.R. 565, which both consider solicitor-client privilege as it relates to government lawyers. Both of those cases confirm that solicitor-client privilege applies to government lawyers and is equally as fundamental. It arises when a government lawyer provides legal advice to a government agency. If, however, the government lawyer provides policy advice rather than legal advice, the privilege would not apply because the communication was not made for the purpose of seeking legal advice. In a similar vein, if a corporate in-house lawyer were to provide business advice to his/her client, the privilege would not apply for the same reason.6 Lawyers can play different roles in the course of their work, whether they work in the private or public sector. Therefore, determining whether or not the work product is privileged requires a case-by case analysis of “the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered.”7

After unsealing the documents, the Court describes the documents in question as emails, executive summaries, reports, briefing notes, and correspondence between various government departments and legal counsel with respect to ongoing arbitration and legal proceedings.8

After examining the documents, the Court rules that they are in fact subject to solicitor-client privilege.9 The documents do not provide policy advice,10 and they are labelled as ‘private and confidential’, with contents that are consistent with this label.11 When considering the email chains contained in the documents, the Court states that it must take a holistic approach in its analysis. It considers the case law on privilege as it relates to email chains where employees of a corporation are discussing the advice of legal counsel, as well as email chains involving the advice of legal counsel being discussed by third parties. In all of these cases, the email chains were found to be privileged.12 As such, the Court finds that the “emails form part of a discrete body of communications that includes clearly privileged material.”13 The court goes on to say that it “must take a holistic approach to this question” and that in these instances the emails are “part of a continuum in which legal advice is given. What all of them have in common is that they essentially “transmit or comment” on the work products” that the court finds are privileged.14

Significance

The holistic approach taken by the court in its analysis of the solicitor-client privilege claimed over the email chains and this concept of a ‘continuum’ of communication are two important aspects to take away from this case. Regardless of whether one is employed in the private or the public sphere, email chains or emails exchanged between numerous employees and/or departments in the course of their employment are commonplace. The Alberta Court in this case found that so long as these emails are in furtherance of a discussion of legal advice sought, these emails will be subject to solicitor-client privilege. The solicitor-client privilege will apply even though they are not direct communication between solicitor and client. Without this protection, the legal advice being discussed in these emails would effectively be disclosed, which would be contrary to the fundamental importance of solicitor-client privilege discussed by the Court at the outset of the decision.

A similar conclusion was reached by the Ontario Superior Court of Justice in Whitty v. Wells, 2016 ONSC 7716. This decision also arose from an Access to Information Request made by private parties to a government branch, namely the Attorney General of Canada. The Crown claimed that it had inadvertently disclosed documents that were subject to solicitor-client privilege and requested that they be returned. The plaintiffs argued, inter alia, that communications between members of the government department that did not include the lawyer and instead included employees discussing a summary of facts and a prosecution plan, were not privileged. The Ontario Court disagreed with this. It stated that where the client is not a person but a body (i.e. a corporation or government department), it is common for various parties to discuss the confidential and privileged information that pertains to that corporation or government department. So long as the dissemination of information is not overly broad, this will not defeat the privilege. “Discussions among the client’s personnel of the legal advice sought or received, or formulation of questions or facts to convey to counsel in order to obtain legal advice fall within the broad scope of solicitor-client privilege.”15 This decision was upheld on appeal by the Divisional Court.16

When it comes to solicitor-client privilege and email chains, the Court has resolved the conundrum and clarified that there is in fact a ‘continuum’ of communication over which solicitor-client privilege can be claimed.


1 Alberta (Municipal Affairs) v Alberta (Information and Privacy Commissioner), 2019 ABQB 436 at paras 3-9.

2 Alberta (Municipal Affairs) v Alberta (Information and Privacy Commissioner), 2019 ABQB 274 at paras 2-4.

3 Ibid at para 5.

4 Ibid at para 6.

5 Ibid at paras 7-8.

6 Ibid at para 9.

7 Ibid.

8 Ibid at para 13.

9 Ibid at para 14.

10 Ibid at para 15.

11 Ibid at para 16.

12 Ibid at para 19-24.

13 Ibid at para 18.

14 Ibid.

15 Whitty v. Wells 2016 ONSC 7716 at para 37.

16 Whitty v. Wells, 2017 ONSC 3682 at para 29.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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