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The Scope of Solicitor-Client Privilege and Trillium Motors

-Solicitor-client privilege arises where there has been: (i) a communication betweensolicitor and client; (ii) which entails the seeking or giving of legal advice, and (iii)which is intended to be confidential by the parties: Solosky v Canada, 1979 CanLII 9

(SCC).

-Balabel v Air-India, [1988] 2 All ER 246, at p 254 (Eng CA).

Privilege obviously attaches to a document conveying legal advice from solicitorto client and to a specific request from the client for such advice. But it does notfollow that all other communications between them lack privilege. In mostsolicitor and client relationships, especially where a transaction involvesprotracted dealings, advice may be required or appropriate on matters great orsmall at various stages. There will be a continuum of communication andmeetings between the solicitor and client. The negotiations for a lease such as

occurred in the present case are only one example. Where information is passed bythe solicitor or client to the other as part of the continuum aimed at keeping bothinformed* so that advice may be sought and given as required, privilege will attach. Aletter from the client containing information may end with such words as pleaseadvise me what I should do. But, even if it does not, there will usually beimplied in the relationship an overall expectation that the solicitor will at eachstage, whether asked specifically or not, tender appropriate advice. Moreover,legal advice is not confined to telling the client the law; it must include advice asto what should prudently and sensibly be done in the relevant legal context.

*Elsewhere the Court suggests that one should ask if the communication is a"necessary exchange"

-Continuum applied

-Ascertaining or investigating the facts upon which the advice will be rendered -Gower v Tolko Manitoba Inc, 2001 MBCA 11 (CanLII)

-Includes advice as to what should be done in the relevant legal context - SamsonIndian Nation and Band v Canada, 1995 CanLII 3602 (FCA)

-Instructions given, even if about what to communicate to other side - Nixon vTimms, 2012 ABQB 65 (CanLII) (while noting Ontario authority that couldsuggest otherwise)

-Not operational documents that are the product of legal advice (except wherethey can be said to truly embody and reveal the advice) - Canada (Public Safetyand Emergency Preparedness) v Information Commissioner of Canada, 2013 FCA 104(CanLII)

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-Trillium v Cassels Brock & Blackwell, 2013 ONSC 1789

-Legal information (versus advice) conveyed from firm to its client not privileged

-Distinction often relevant to the existence of s-c relationship, but cant find cases

in which it has been used to demarcate scope of privilege

-But... policy heavily favours protecting privilege, which weighs against dissecting therelationship between solicitor and client - Foster Wheeler Power Co v Socitintermunicipale de gestion et d'limination des dchets (SIGED) inc, 2004 SCC 18 at para 41,42 (citations omitted):

In the case of complicated and prolonged mandates, the obligation of justifyingeach case as one where confidentiality and, by extension, immunity from judicialdisclosure apply is poorly adapted to the nature of professional relationships andthe safeguards required to maintain secrecy in an effective manner. In a case such

as the one before this Court, the client and lawyer would be expected to dissect all facetsof their relationship in order to characterize them and consequently invoke immunityfrom disclosing some elements, but not others. Proceeding in this manner multipliesthe risks of disclosing confidential information and further weakens professionalsecrecy, an institution that the legislature and the courts have afforded strongand generous protection.

In such cases, a different method would be preferable. It would be enough tohave the party invoking professional secrecy establish that a general mandatehad been given to a lawyer for the purpose of obtaining a range of services

generally expected of a lawyer in his or her professional capacity. At this stage,there would be a presumption of fact, albeit a rebuttable one, to the effect that allcommunications between client and lawyer and the information they sharedwould be considered prima facie confidential in nature.

-Why, then, the parsing in Trillum Motors?

A. As a matter of principle, conveyance of legal information is not essentialenough to an existing s-c relationship?

B. Unique context?

C. Wrong in law?

...

-Text of decision does not at all suggest that "A" is the answer

-Arguably "B"

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-Litigation about whether s-c relationship - documents key and a non-party held the privilege (very rare scenario)

-Firm pleads its retainer was a limited scope retainer (which invitesboundary-setting)

-Non-party claiming privilege suggested as much (which Court remarksabout twice!)

-Do not accept that, in more ordinary circumstances, communications btw s-cwill so finely parsed based on their subject matter

-Arguing communications are within the continuum - the affidavit

-identify and qualify solicitor

-identify client and client contacts

-identify when retainer or advisory role arose

-highlight significance of legal context

-limited role if possible I do not hold an office

-limited role if possible not my role to provide business or policy advice

-attach an index

-once the context is set, addressing individual docs becomes easy

Dan Michaluk

May 26, 2013