Date: 20041112
Docket: A-364-04
Citation: 2004 FCA 380
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
Motion Dealt with in Writing Without Appearance of Parties
Order delivered at Ottawa, Ontario, on November 12, 2004.
REASONS FOR ORDER BY: LINDEN J.A.
Date: 20041112
Docket: A-364-04
Citation: 2004 FCA 380
Ottawa, Ontario, November 12, 2004
BETWEEN:
TELUS COMMUNICATIONS INC.
Appellant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
LINDEN J.A.
[1] This application by Telus Communication Inc. ("TCI") follows an Order dated September 23, 2004, whereby I ordered that two memoranda, dated March 26, 2004 and April 7, 2004, be delivered by Canadian Radio-television and Telecommunications Commission ("CRTC") to the Registry and served on TCI, subject to any claims of privilege. Pursuant to that order, the CRTC has delivered the April 7, 2004 memorandum in its entirety, but has delivered the March 26, 2004 memorandum (the "memo") in an abridged fashion claiming solicitor-client privilege over the excised portion, specifically, paragraphs 16 to 21 of the memo. This application seeks the release of the entire memorandum on the basis that the privilege does not protect the material in question.
FACTS
[2] The undisputed affidavit evidence is that paragraphs 16 to 21 of the memo were actually drafted by James Wilson, Legal Counsel in the Legal Directorate of the CRTC. Counsel in the Legal Directorate routinely provide legal advice to the CRTC and appear on behalf of the CRTC in its proceedings and before the courts.
[3] The material contained in paragraphs 16 to 21 was prepared at the request of Rosemary Bernath and Brenda Stevens following a meeting between them and Mr. Wilson. Ms. Bernath and Ms. Stevens both work in the Telecommunications Directorate of the CRTC. The evidence suggests that the Commission relies on the Telecommunications Directorate, to obtain legal advice on its behalf and to forward that advice in the form of a recommendation. Therefore, part of the work done by the Telecommunications Directorate for the Commission is obtaining legal advice and transmitting it to the Commission.
[4] The memo in question, which I have viewed in confidence, is addressed to "Telecommunications Committee" and states that it is from "Rosemary Bernath". It is signed by Shirley Soehn - Executive Director Telecommunications. It is 21 paragraphs in length. The excised section of the memo, paragraphs 16 to 21, has as a heading underlined "Staff Analysis and Recommendations". In the upper right hand corner of the memo the word "PROTECTED" appears in capitals in a box entitled "Security Classification".
THE LAW OF SOLICITOR-CLIENT PRIVILEGE IN BRIEF
[5] Solicitor-client privilege is essential to the Canadian Justice system. All clients of the legal profession must be able to obtain full and frank legal advice without the fear that their communications will be used against them.
Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented (See R. v. McClure, [2001] 1 S.C.R. 445 at para. 2).
[6] In [1982] 1 S.C.R. 860">Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860 at 892-93, Lamer C.J. summarized the privilege in this way:
In summary, a lawyer's client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communication are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.
[7] While privilege is often discussed in terms of protecting from disclosure the communications made by the client to the lawyer, communications by the lawyer to the client is equally protected by the privilege.
¼if a member of the public is to receive the real benefit of legal assistance that the law contemplates that he should, he and his legal adviser must be able to communicate quite freely without the inhibiting influence that would exist if what they said could be used in evidence against him. The reason for the rule, and the rule itself, extends to the communications for the purpose of getting legal advice, to incidental materials that would tend to reveal such communications, and to the legal advice itself. (emphasis added - paragraph 9 of Susan Hosiery Ltd. v. Canada (Minister of National Revenue), [1969] 2 Ex. C.R. 27 per Jackett P.).
[8] Privilege applies not only where legal advice is given to clients by legal practioners in the realm of private law or criminal law, but also by in-house counsel, including government in-house counsel:
It will apply with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that he or she is 'in house' does not remove the privilege, or change its nature. (Pritchard v. Ontario Human Rights Commission, [2004], S.C.C. 31 at para. 21.)
[9] In fact, courts have recognized the importance of legal counsel in advising governmental decision makers:
Statutory decision-makers, who are often persons with technical expertise in a particular area but not lawyers, need confidential legal advice with respect to the interpretation of relevant legislation and other legal issues in order to facilitate candid discussions. (See Pritchard v. Ontario Human Rights Commission (2003), 63 O.R. (3d) 97, at p. 111.)
[10] Since in-house and government lawyers are often employed in multiple capacities it is important to bear in mind that only communications in their capacities as lawyers can be privileged. Communications for other purposes, such as the giving of business or policy advice, does not fall within the umbrella of privilege. (R. v. Campbell, [1999] 1 S.C.R. 565.) Whether a particular communication is covered by privilege in this context has to be assessed on a case by case basis. It will depend "on the nature of the relationship, the subject matter of the advice and the circumstance in which it is sought and rendered" (Minter v. Priest, [1929] 1 K.B. 655 (C.A.) at pp. 668-669 as cited in R. v. Campbell at paragraph 50).
[11] Both sides agree that the criteria required to establish privilege are set out by Dickson J. in [1980] 1 S.C.R. 821">Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837:
(I) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice, and (iii) which is intended to be confidential by the parties.
[12] Once privilege is established it is broad and all-encompassing. It will cover all communications that fall within the usual and ordinary scope of the professional relationship. Both oral and written communications are covered by the doctrine of privilege.
COMMUNICATION BETWEEN SOLICITOR AND CLIENT
[13] The undisputed evidence is that the material in paragraphs 16 to 21 was authored by Mr. Wilson, an in-house lawyer. It was then provided to the Telecommunications Directorate which in turn passed it on to the Commission by incorporating it unchanged into the memorandum in question. That is, the legal advice prepared by Mr. Wilson was merely forwarded to the Commission through its Telecommunications Directorate.
[14] It is necessary to determine whether the Telecommunications Directorate should be considered a third party or whether it is more properly described as an agent of the Commission, as legal advice made through an agent is treated differently than legal advice made through a third party.
[15] Legal advice that is disclosed to a third party may lose its privileged status. On the other hand, legal advice that is communicated to the client through an agent will normally be treated as legal advice to the client themselves. In Susan Hosiery (supra) communications between two accountants and a lawyer were deemed to be privileged because the accountants were obtaining legal advice on behalf of the client.
[16] Similarly, in a more recent case, legal documents prepared by an accountant were held to be privileged to the extent that they consisted of "passing along to the principal legal advice given to the agent, notes made of legal advice given at meetings with counsel and legal strategy based on the legal advice"(Alberta (Provincial Treasurer) v. National Bank of Canada (1995), 172 A. R. 282 at para. 113). Again, the accountant was found to be acting as an agent of the client.
[17] In Sunwell Engineering Co. et al v. Mogilevsky et al (1986), 9 C.P.R. (3d) 479, two documents were found to be privileged. The first was a letter written by a solicitor but sent first to a patent agent before being passed on to the client. The second was a letter from the patent agent to the client. Both documents were held to be privileged since the patent agent was found to be an agent of the client. Master Peppiatt explained the rationale behind the agency rule:
...when a solicitor deals with a client through an agent those communications are just as privileged as if they were directly between the solicitor and the client, notwithstanding the fact that the communications between the agent and the client would not be privileged.
I think that this is a common sense principle. Little would be accomplished if a client in order to give his solicitor the benefit of his accountant's knowledge had to have the accountant tell it to him, either orally or in writing, to be passed on to the solicitor and, when the solicitor finds it necessary to communicate with the client's accountant he must communicate with the client to be passed on to the accountant, a process which would increase time and expense as well as the risk of misunderstanding. (see page 485).
[18] These principles apply here. The Telecommunications Directorate is not a third party. The Commission relies on its Telecommunications Directorate to obtain legal advice and to forward it to the responsible officials. The Telecommunications Directorate obtains legal advice on behalf of the Commission. To require the Commission to deal with its Legal Directorate and its Telecommunications Directorate separately would be inefficient and burdensome. The Telecommunications Directorate is akin to an agent in this context.
SEEKING OR GIVING OF LEGAL ADVICE
[19] The paragraphs in question were written by legal counsel upon the request for legal advice by Commission staff. They were written by legal counsel in his capacity as counsel and not in some other government capacity. The applicant has suggested that some portions of the paragraphs might not constitute legal advice. I have reviewed the paragraphs in question and am satisfied that the paragraphs contain legal advice and nothing else. In fact, the paragraphs simply pass on to the Commission Mr. Wilson's legal advice.
[20] While it might have been preferable to differentiate more precisely the advice of the Telecommunications Directorate from that of the Legal Directorate, this is not necessary. Privilege is not lost merely because the communication of the legal advice to the client is done by an agent. It is the substance of the situation that matters not the form.
CONFIDENTIALITY
[21] I am satisfied that the legal advice in question was intended to be confidential. The word "Protected" appears at the top of the memo. While it might have been better to label the document with the word "Confidential", I am satisfied on the affidavit evidence that this was meant to convey the idea that the material was to be kept confidential, and it has been since that time. The word "Protected", is in my view, synonymous with the word "confidential" or "private" in this situation.
CONCLUSION
[22] Having found that paragraphs 16 to 21 are merely the transmitting of legal advice by counsel to his client through the Telecommunications Directorate in a manner akin to an agent, I conclude that the paragraphs in question are privileged and need not be disclosed.
[23] The application will be dismissed with costs.
"A.M. Linden"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-364-04
STYLE OF CAUSE: TELUS COMMUNICATIONS INC. v.
ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: LINDEN J.A.
DATED: November 12, 2004
WRITTEN REPRESENTATIONS BY:
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John Lowe
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FOR THE APPELLANT/
APPLICANT
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John S. Tyhurst
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Bennett Jones
Calgary
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FOR THE APPELLANT
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Morris Rosenberg
Deputy Attorney General of Canada
Ottawa
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FOR THE RESPONDENT
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