Federal Appeal


Federal Court of Appeal

DISCOVERY
Not every comment uttered by lawyer to client was privileged

This was appeal of Federal Court’s decision ordering disclosure of protocol. R.C.M.P. and Department of Justice (“DOJ”) received request under Access to Information Act (Can.), for protocol. Protocol set out procedures to be followed by DOJ and R.C.M.P. when R.C.M.P. documents were sought in civil litigation against federal Crown. R.C.M.P. and DOJ resisted disclosure based, in part, on solicitor-client privilege. Requester issued complaint to respondent Information Commissioner. Commissioner concluded that protocol did not fall within exemptions. Commissioner applied to Federal Court under s. 42 of Act seeking disclosure of protocol. Federal Court found that protocol did not fit within exemptions and granted application. Appeal allowed in part. Not every comment uttered by lawyer to client was privileged. Documents and actions shaped by legal advice were not necessarily themselves legal advice and did not necessarily form part of protected continuum of communication. Last fourteen paragraphs were negotiated and agreed upon operational policy formulated after any legal advice had been given and after any continuum of communication that was necessary to be protected. Disclosing last fourteen paragraphs did not disclose anything about content of any earlier legal advice or related communications and did not undercut purposes served by solicitor-client privilege. Last fourteen paragraphs were not privileged. First three paragraphs memorialized content of certain legal obligations of federal Crown for benefit of R.C.M.P. and DOJ and their personnel engaged in document management, which was legal advice that fell under exemption in s. 23 of Act. First three paragraphs of protocol were privileged.

Canada (Information Commissioner) v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 17, 2013, F.C.A., John M. Evans J.A., David Stratas J.A., and D.G. Near J.A., File No. A-375-12) Decision at 223 A.C.W.S. (3d) 556 was reversed in part.  226 A.C.W.S. (3d) 701.

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