Federal Appeal


Civil Procedure

DISCOVERY
Report subject to both solicitor-client privilege and public interest privilege

Appellant was criminal lawyer who complained to Canadian Judicial Council (“CJC”) about conduct of Ontario Superior Court Judge alleging that judge had been guilty of serious misconduct during murder trial. CJC engaged lawyer, professor, member of Ontario Bar and distinguished criminal law scholar. Relying on lawyers’s report, chairperson of CJC dismissed appellant’s complaint. Appellant brought application for judicial review. CJC refused to disclose lawyer’s report. Appellant brought motion to compel disclosure of report. Prothonotary granted motion. CJC brought motion to set aside prothonotary’s decision. Judge allowed motion, finding that report was subject to both solicitor-client privilege and public interest privilege. Appellant appealed judge’s decision. Appeal dismissed. Per Evans J.A.: Report was intended to be confidential. CJC did not subsequently waive confidentiality. Inquiring into allegations in order to assist chairperson in making decision on whether to refer complaint to hearing or dismiss it called for analysis of documents and tapes that required skills and knowledge of lawyer. It could be inferred from nature of allegations into which lawyer was to conduct inquiries that role involved legal and factual analysis that required skills and knowledge of lawyer. When lawyer was engaged to assist chairperson in deciding how to proceed with complaint he was engaged in capacity as lawyer and report was subject to solicitor-client privilege. Per Mainville J.A. (concurring): Report of lawyer was subject to public interest privilege. CJC had to ensure that examination respected underlying purpose of constitutional principle of judicial independence. Decision that report should not be disclosed based on public interest privilege was reasonable. Any resulting damage to public interest in due administration of justice was minimal.

Slansky v. Canada (Attorney General) (Sep. 9, 2013, F.C.A., John M.Evans J.A., David Stratas J.A., and Robert M. Mainville J.A., File No. A-497-11) Decision at 211 A.C.W.S. (3d) 288 was affirmed.  235 A.C.W.S. (3d) 350.

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