Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319

                                                 SUPREME COURT OF CANADA

Between:

Minister of Justice

Appellant

and

Sheldon Blank

Respondent

‑ and ‑

Attorney General of Ontario, The Advocates’ Society and

Information Commissioner of Canada

Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

______________________________

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39

Minister of Justice                                                                                           Appellant

v.

Sheldon Blank                                                                                               Respondent

and

Attorney General of Ontario, The Advocates’ Society and

Information Commissioner of Canada                                                          Interveners

Indexed as:  Blank v. Canada (Minister of Justice)

Neutral citation:  2006 SCC 39.

File No.:  30553.

2005:  December 13; 2006: September 8.

Present:  McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

on appeal from the federal court of appeal

Access to information — Exemptions — Solicitor‑client privilege — Distinction between solicitor‑client privilege and litigation privilege — Claimant requesting documents relating to prosecutions of himself and a company for federal regulatory offences — Charges subsequently quashed or stayed — Request for access denied by government on various grounds including solicitor‑client privilege exemption set out in s. 23  of Access to Information Act  — Whether documents once subject to litigation privilege remain privileged when litigation ends — Access to Information Act, R.S.C. 1985, c. A‑1, s. 23 .

Law of professions — Barristers and solicitors — Solicitor‑client privilege — Litigation privilege — Distinction between solicitor‑client privilege and litigation privilege — Nature, scope and duration of litigation privilege.

In 1995, the Crown laid 13 charges against B and a company for  regulatory offences; the charges were quashed, some of them in 1997 and the others in 2001.  In 2002, the Crown laid new charges by way of indictment, but stayed them prior to trial.  B and the company sued the federal government in damages for fraud, conspiracy, perjury and abuse of its prosecutorial powers.  In 1997 and again in 1999, B requested all records pertaining to the prosecutions of himself and the company, but only some of the requested documents were furnished.  His requests for information in the penal proceedings and under the Access to Information Act  were denied by the government on various grounds, including the “solicitor‑client privilege” exemption set out in s. 23 of the Act. Additional materials were released after B lodged a complaint with the Information Commissioner.  The vast majority of the remaining documents were found to be properly exempted from disclosure under the solicitor‑client privilege.  On application for review under s. 41 of the Act, the motions judge held that documents excluded from disclosure pursuant to the litigation privilege should be released if the litigation to which the record relates has ended.  On appeal, the majority of the Federal Court of Appeal on this issue found that the litigation privilege, unlike the legal advice privilege, expires with the end of the litigation that gave rise to the privilege, subject to the possibility of defining “litigation” broadly.

Held:  The appeal should be dismissed.

Per McLachlin C.J. and Binnie, Deschamps, Fish, and Abella JJ.:  The Minister’s claim of litigation privilege under s. 23  of the Access to Information Act  fails.  The privilege has expired because the files to which B seeks access relate to penal proceedings that have terminated. [9]

The litigation privilege and the solicitor‑client privilege are driven by different policy considerations and generate different legal consequences.  Litigation privilege is not directed at, still less, restricted to, communications between solicitor and client.  It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties.  The purpose of the litigation privilege is to create a zone of privacy in relation to pending or apprehended litigation.  The common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege.  Unlike the solicitor‑client privilege, it is neither absolute in scope nor permanent in duration.  The privilege may retain its purpose and its effect where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended.  This enlarged definition of litigation includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action or juridical source.  Proceedings that raise issues common to the initial action and share its essential purpose would qualify as well.  [27] [33‑39]

The litigation privilege would not in any event protect from disclosure evidence of the claimant party’s abuse of process or similar blameworthy conduct.  Even where the materials sought would otherwise be subject to litigation privilege, the party seeking their disclosure may be granted access to them upon a prima facie showing of actionable misconduct by the other party in relation to the proceedings with respect to which litigation privilege is claimed.  Whether privilege is claimed in the originating or in related litigation, the court may review the materials to determine whether their disclosure should be ordered on this ground.  [44‑45]

Litigation privilege should attach to documents created for the dominant purpose of litigation.  The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.  Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard is consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of  the broadly interpreted solicitor‑client privilege.  [59‑60]

Per Bastarache and Charron JJ.:  Litigation privilege cannot be invoked at common law to refuse disclosure which is statutorily mandated.  Either litigation privilege must be read into s. 23  of the Access to Information Act  or it must be acknowledged that the Crown cannot invoke litigation privilege so as to resist disclosure under the Act.  An exemption for litigation privilege should be read into s. 23 because litigation privilege has always been considered a branch of solicitor‑client privilege.  The two‑branches approach to solicitor‑client privilege should subsist, even accepting that solicitor‑client privilege and litigation privilege have distinct rationales.  [67] [69‑71] [73]

Once the privilege is determined to exist, s. 23 grants the institution a discretion as to whether or not to disclose.  Although litigation privilege is understood as existing only vis‑à‑vis the adversary in the litigation, the effect of s. 23 is to permit the government institution to refuse disclosure to any requester so long as the privilege is found to exist.  In this case, the Minister’s claim of litigation privilege fails because the privilege has expired.  [72] [74]

Cases Cited

By Fish J.

Referred to:  R. v. Stinchcombe, [1991] 3 S.C.R. 326; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31; Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129; Liquor Control Board of Ontario v. Lifford Wine Agencies Ltd. (2005), 76 O.R. (3d) 401; Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer) (2002), 62 O.R. (3d) 167; College of Physicians & Surgeons (British Columbia) v. British Columbia (Information & Privacy Commissioner) (2002), 9 B.C.L.R. (4th) 1, 2002 BCCA 665; Gower v. Tolko Manitoba Inc. (2001), 196 D.L.R. (4th) 716, 2001 MBCA 11; Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. (2000), 188 N.S.R. (2d) 173, 2000 NSCA 96; General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321; In re L. (A Minor), [1997] A.C. 16; Three Rivers District Council v. Governor and Company of the Bank of England (No. 6), [2004] Q.B. 916, [2004] EWCA Civ 218; Hickman v. Taylor, 329 U.S. 495 (1947); Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326, 1999 ABQB 407; Boulianne v. Flynn, [1970] 3 O.R. 84; Wujda v. Smith (1974), 49 D.L.R. (3d) 476; Meaney v. Busby (1977), 15 O.R. (2d) 71; Canada Southern Petroleum Ltd. v. Amoco Canada Petroleum Co. (1995), 176 A.R. 134; Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323; Waugh v. British Railways Board, [1979] 2 All E.R. 1169; Davies v. Harrington (1980), 115 D.L.R. (3d) 347; Voth Bros. Construction (1974) Ltd. v. North Vancouver School District No. 44 Board of School Trustees (1981), 29 B.C.L.R. 114; McCaig v. Trentowsky (1983), 148 D.L.R. (3d) 724; Nova, an Alberta Corporation v. Guelph Engineering Co. (1984), 5 D.L.R. (4th) 755; Lyell v. Kennedy (1884), 27 Ch. D. 1.

By Bastarache J.

Referred to: Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Interprovincial Pipe Line Inc. v. M.N.R., [1996] 1 F.C. 367; Amato v. The Queen, [1982] 2 S.C.R. 418; General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321.

Statutes and Regulations Cited

Access to Information Act , R.S.C. 1985, c. A‑1 , ss. 16(1) (b), (c), 17 , 23 , 41 .

Fisheries Act , R.S.C. 1985, c. F‑14 .

Pulp and Paper Effluent Regulations, SOR/92‑269.

Authors Cited

Paciocco, David M., and Lee Stuesser.  The Law of Evidence, 3rd ed.  Toronto:  Irwin Law, 2002.

Royer, Jean‑Claude.  La preuve civile, 3^e éd.  Cowansville, Qué.:  Yvon Blais, 2003.

Sharpe, Robert J.  “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada.  Don Mills, Ont.: Richard De Boo Publishers, 1984, 163.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada, 2nd ed. Toronto:  Butterworths, 1999.

Sullivan, Ruth.  Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.:  Butterworths, 2002.

Watson, Garry D., and Frank Au.  “Solicitor‑Client Privilege and Litigation Privilege in Civil Litigation” (1998), 77 Can. Bar Rev. 315.

Wilson, J. Douglas.  “Privilege in Experts’ Working Papers” (1997), 76 Can. Bar Rev. 346.

Wilson, J. Douglas.  “Privilege:  Watson & Au (1998) 77 Can. Bar Rev. 346:  REJOINDER:  ‘It’s Elementary My Dear Watson’” (1998), 77 Can. Bar Rev. 549.

APPEAL from a judgment of the Federal Court of Appeal (Décary, Létourneau and Pelletier JJ.A.), [2005] 1 F.C.R. 403, 244 D.L.R. (4th) 80, 325 N.R. 315, 21 Admin. L.R. (4th) 225, 34 C.P.R. (4th) 385, [2004] F.C.J. No. 1455 (QL), 2004 FCA 287, affirming in part an order of Campbell J., 2003 CarswellNat 5040, 2003 FCT 462.  Appeal dismissed.

Graham Garton, Q.C., and Christopher M. Rupar, for the appellant.

Sheldon Blank, on his own behalf.

Luba Kowal, Malliha Wilson and Christopher P. Thompson, for the intervener the Attorney General of Ontario.

Wendy Matheson and David Outerbridge, for the intervener The Advocates’ Society.

Raynold Langlois, Q.C., and Daniel Brunet, for the intervener the Information Commissioner of Canada.

The judgment of McLachlin C.J. and Binnie, Deschamps, Fish and Abella JJ. was delivered by

Fish J. —

I

1                                   This appeal requires the Court, for the first time, to distinguish between two related but conceptually distinct exemptions from compelled disclosure: the solicitor-client privilege and the litigation privilege.  They often co-exist and one is sometimes mistakenly called by the other’s name, but they are not coterminous in space, time or meaning.

2                                   More particularly, we are concerned in this case with the litigation privilege, with how it is born and when it must be laid to rest.  And we need to consider that issue in the narrow context of the Access to Information Act , R.S.C. 1985, c. A-1  (“Access Act ”), but with prudent regard for its broader implications on the conduct of legal proceedings generally. 

3                                   This case has proceeded throughout on the basis that “solicitor-client privilege” was intended, in s. 23  of the Access Act , to include the litigation privilege which is not elsewhere mentioned in the Act.  Both parties and the judges below have all assumed that it does.

4                                   As a matter of statutory interpretation, I would proceed on the same basis. The Act was adopted nearly a quarter-century ago.  It was not uncommon at the time to treat “solicitor-client privilege” as a compendious phrase that included both the legal advice privilege and litigation privilege.  This best explains why the litigation privilege is not separately mentioned anywhere in the Act.  And it explains as well why, despite the Act’s silence in this regard, I agree with the parties and the courts below that the Access Act  has not deprived the government of the protection previously afforded to it by the legal advice privilege and the litigation privilege: In interpreting and applying the Act, the phrase “solicitor-client privilege” in s. 23 should be taken as a reference to both privileges. 

5                                   In short, we  are not asked in this case to decide whether the government can invoke litigation privilege. Quite properly, the parties agree that it can.  Our task, rather, is to examine the defining characteristics of that privilege and, more particularly, to determine its lifespan.

6                                   The Minister contends that the solicitor-client privilege has two “branches”, one concerned with confidential communications between lawyers and their clients, the other relating to information and materials gathered or created in the litigation context.  The first of these branches, as already indicated, is generally characterized as the “legal advice privilege”; the second, as the “litigation privilege”.

7                                   Bearing in mind their different scope, purpose and rationale, it would be preferable, in my view, to recognize that we are dealing here with distinct conceptual animals and not with two branches of the same tree.  Accordingly,  I shall refer in these reasons to the solicitor-client privilege as if it includes only the legal advice privilege, and shall indeed use the two phrases — solicitor-client privilege and legal advice privilege — synonymously and interchangeably, except where otherwise indicated.

8                                   As a matter of substance and not mere terminology, the distinction between litigation privilege and the solicitor-client privilege is decisive in this case.  The former, unlike the latter, is of temporary duration.  It expires with the litigation of which it was born.  Characterizing litigation privilege as a “branch” of the solicitor-client privilege, as the Minister would, does not envelop it in a shared cloak of permanency.

9                                   The Minister’s claim of litigation privilege fails in this case because the privilege claimed, by whatever name, has expired: The files to which the respondent seeks access relate to penal proceedings that have long terminated.  By seeking civil redress for the manner in which those proceedings were conducted, the respondent has given them neither fresh life nor a posthumous and parallel existence.

10                               I would therefore dismiss the appeal.

II

11                               The respondent is a self-represented litigant who, though not trained in the law, is no stranger to the courts.  He has accumulated more than ten years of legal experience first-hand, initially as a defendant and then as a petitioner and plaintiff.  In his resourceful and persistent quest for information and redress, he has personally instituted and conducted a plethora of related proceedings, at first instance and on appeal, in federal and provincial courts alike. 

12                               This saga began in July 1995, when the Crown laid 13 charges against the respondent and Gateway Industries Ltd. (“Gateway”) for  regulatory offences under the Fisheries Act , R.S.C. 1985, c. F-14 , and the Pulp and Paper Effluent Regulations, SOR/92-269.  The respondent was a director of Gateway.  Five of the charges alleged pollution of the Red River and another eight alleged breaches of reporting requirements.

13                               The counts relating to reporting requirements were quashed in 1997 and the pollution charges were quashed in  2001.  In 2002, the Crown laid new charges by way of indictment — and stayed them prior to trial.  The respondent and Gateway then sued the federal government in damages for fraud, conspiracy, perjury and abuse of its prosecutorial powers.

14                               This appeal concerns the respondent’s repeated attempts to obtain documents from the government.  He succeeded only in part.  His requests for information in the penal proceedings and under the Access Act  were denied by the  government on various grounds, including “solicitor-client privilege”.  The issue before us now relates solely to the Access Act  proceedings.  We have not been asked to decide whether the Crown properly fulfilled, in the criminal proceedings, its disclosure obligations under R. v. Stinchcombe, [1991] 3 S.C.R. 326. And in the record before us, we would in any event be unable to do so.

15                               In October 1997, and again in May 1999, the respondent requested from the  Access to Information and Privacy Office of the Department of Justice all records pertaining to his prosecution and the prosecution of Gateway.  Only some of the requested documents were furnished.

16                               Additional materials were released after the respondent lodged a complaint with the Information Commissioner.  The Director of Investigation found that the vast majority of the remaining documents were properly exempted from disclosure under the solicitor-client privilege.

17                               The respondent pursued the matter further by way of an application for review pursuant to s. 41  of the Access Act .  Although the appellant relied on various exemptions from disclosure in the Access Act , proceedings before the motions judge focussed on the appellant’s claims of solicitor-client privilege in reliance on s. 23  of the Access Act .

18                               On the respondent’s application, Campbell J. held that documents excluded from disclosure pursuant to litigation privilege should be released if the litigation to which the record relates has ended (2003 CarswellNat 5040, 2003 FCT 462).

19                               On appeal, the Federal Court of Appeal divided on the duration of the privilege.  Pelletier J.A., for the majority on this point, found that litigation privilege, unlike legal advice privilege, expires with the end of the litigation that gave rise to the privilege, “subject to the possibility of defining . . . litigation . . . broadly” ([2005] 1 F.C.R. 403, 2004 FCA 287, at para. 89).  He therefore held that s. 23  of the Access Act  did  not apply to the documents for which a claim of litigation privilege is made in this case because the criminal prosecution had ended.

20                               Létourneau J.A., dissenting on this point, found that the privilege did not necessarily end with the termination of the litigation that gave rise to it.  He would have  upheld the privilege in this case.

III

21                               Section 23  of the Access Act  provides:

23.  The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.

22                               The narrow issue before us is whether documents once subject to the litigation privilege remain privileged when the litigation ends.

23                               According to the appellant, this Court has determined that litigation privilege is a branch of the solicitor-client privilege and benefits from the same near-absolute protection, including permanency.  But none of the cases relied on by the Crown support this assertion.  The Court has addressed the solicitor-client privilege on numerous occasions and repeatedly underlined its paramount significance, but never yet considered the nature, scope or duration of the litigation privilege.

24                               Thus, the Court explained in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, and has since then reiterated, that the solicitor-client privilege has over the years evolved from a rule of evidence to a rule of substantive law.  And the Court has consistently emphasized the breadth and primacy of the solicitor-client privilege: see, for example, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; and Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31.  In an oft-quoted passage, Major J., speaking for the Court, stated in McClure that “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance” (para. 35).

25                               It is evident from the text and the context of these decisions, however, that they relate only to the legal advice privilege, or solicitor-client privilege properly so called, and not to the litigation privilege as well.

26                               Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege.  The solicitor-client privilege has been firmly entrenched for centuries.  It recognizes that  the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it.  Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law.  They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence.  The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.

27                               Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client.  It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties.  Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship.  And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.

28                               R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation privilege and solicitor-client privilege:

It is crucially important to distinguish litigation privilege from solicitor-client privilege.  There are, I suggest, at least three important differences between the two.  First, solicitor-client privilege applies only to confidential communications between the client and his solicitor.  Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature.  Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved.  Litigation privilege, on the other hand, applies only in the context of litigation itself.  Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege.  This difference merits close attention.  The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice.  If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

Litigation privilege, on the other hand, is geared directly to the process of litigation.  Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.  Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).

(“Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65)

29                               With the exception of Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129,  a decision of the British Columbia Court of Appeal, the decisions of appellate courts in this country have consistently found that litigation privilege is based on a different rationale than solicitor-client privilege: Liquor Control Board of Ontario v. Lifford Wine Agencies Ltd. (2005), 76 O.R. (3d) 401; Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer) (2002), 62 O.R. (3d) 167 (“Big Canoe”); College of Physicians & Surgeons (British Columbia) v. British Columbia (Information & Privacy Commissioner) (2002), 9 B.C.L.R. (4th) 1, 2002 BCCA 665; Gower v. Tolko Manitoba Inc. (2001), 196 D.L.R. (4th) 716, 2001 MBCA 11; Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. (2000), 188 N.S.R. (2d) 173, 2000 NSCA 96; General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321.

30                               American and English authorities are to the same effect: see In re L. (A Minor), [1997] A.C. 16 (H.L.); Three Rivers District Council v. Governor and Company of the Bank of England (No. 6), [2004] Q.B. 916, [2004] EWCA Civ 218, and Hickman v. Taylor, 329 U.S. 495 (1947).  In the United States communications with third parties and other materials prepared in anticipation of litigation are covered by the similar “attorney work product” doctrine.  This “distinct rationale” theory is also supported by the majority of academics: Sharpe; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 745-46; D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 197-98; J.-C. Royer, La preuve civile (3rd ed. 2003), at pp. 868-71; G. D. Watson and F. Au, “Solicitor-Client Privilege and Litigation Privilege in Civil Litigation” (1998), 77 Can. Bar Rev. 315.  For the opposing view, see J. D. Wilson,  “Privilege in Experts’ Working Papers” (1997), 76 Can. Bar Rev. 346, and “Privilege: Watson & Au (1998) 77 Can. Bar Rev. 346: REJOINDER: ‘It’s Elementary My Dear Watson’” (1998), 77 Can. Bar Rev. 549.

31                               Though conceptually distinct, litigation privilege and legal advice privilege serve a common cause: The secure and effective administration of justice according to law.  And they are complementary and not competing in their operation.  But treating litigation privilege and legal advice privilege as two branches of the same tree tends to obscure the true nature of both. 

32                               Unlike the solicitor-client privilege, the litigation privilege arises and operates even in the absence of a solicitor-client relationship, and it applies indiscriminately to all litigants, whether or not they are represented by counsel: see Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326, 1999 ABQB 407.  A self-represented litigant is no less in need of, and therefore entitled to, a “zone” or “chamber” of privacy.  Another important distinction leads to the same conclusion.  Confidentiality, the sine qua non of the solicitor-client privilege, is not an essential component of the litigation privilege.  In preparing for trial, lawyers as a matter of course obtain information from third parties who have no need nor any expectation of confidentiality; yet the litigation privilege attaches nonetheless.

33                               In short, the litigation privilege and the solicitor-client privilege  are driven by different policy considerations and generate different legal consequences.

34                               The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose — and therefore its justification.  But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

35                               Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield.  Where the litigation has indeed ended, there is little room for concern lest opposing counsel or their clients argue their case “on wits borrowed from the adversary”, to use the language of the U.S. Supreme Court in Hickman, at p. 516.

36                               I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege: Lifford; Chrusz; Big Canoe; Boulianne v. Flynn, [1970] 3 O.R. 84 (H.C.J.); Wujda  v. Smith (1974), 49 D.L.R. (3d) 476 (Man. Q.B.); Meaney v. Busby (1977), 15 O.R. (2d) 71 (H.C.J.); Canada Southern Petroleum Ltd. v. Amoco Canada Petroleum Co. (1995), 176 A.R. 134 (Q.B.).  See also Sopinka, Lederman and Bryant; Paciocco and Stuesser.

37                               Thus, the principle “once privileged, always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege.  The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

38                               As mentioned earlier, however, the privilege may retain its purpose — and, therefore, its effect — where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended.  In this regard, I agree with Pelletier J.A. regarding “the possibility of defining . . . litigation more broadly than the particular proceeding which gave rise to the claim” (para. 89); see Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (C.A.).

39                               At a minimum, it seems to me, this enlarged definition of “litigation”  includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action (or “juridical source”).  Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

40                               As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate” (Sharpe, at p. 165).  This purpose, in the context of s. 23  of the Access Act  must take into account the nature of much government litigation.  In the 1980s, for example, the federal government confronted litigation across Canada arising out of its urea formaldehyde insulation program.  The parties were different and the specifics of each claim were different but the underlying liability issues were common across the country. 

41                               In such a situation, the advocate’s “protected area” would extend to work related to those underlying liability issues even after some but not all of the individual claims had been disposed of.  There were common issues and the causes of action, in terms of the advocate’s work product, were closely related.  When the claims belonging to that particular group of causes of action had all been dealt with, however, litigation privilege would have been exhausted, even if subsequent disclosure of the files would reveal aspects of government operations or general litigation strategies that the government would prefer to keep from its former adversaries or other requesters under the Access Act .  Similar issues may arise in the private sector, for example in the case of a manufacturer dealing with related product liability claims.  In each case, the duration and extent of the litigation privilege are circumscribed by its underlying purpose, namely the protection essential to the proper operation of the adversarial process.

                                                                   IV

42                               In this case, the respondent claims damages from the federal government for fraud, conspiracy, perjury and abuse of prosecutorial powers.  Pursuant to the Access Act , he demands the disclosure to him of all documents relating to the Crown’s conduct of its proceedings against him.  The source of those proceedings is the alleged pollution and breach of reporting requirements by the respondent and his company.

43                               The Minister’s claim of privilege thus concerns documents that were prepared for the dominant purpose of a criminal prosecution relating to environmental matters and reporting requirements.  The respondent’s action, on the other hand, seeks civil redress for the manner in which the government conducted that prosecution.  It springs from a different juridical source and is in that sense unrelated to the litigation of which the privilege claimed was born.

44                               The litigation privilege would not in any event protect from disclosure evidence of the claimant party’s abuse of process or similar blameworthy conduct.  It is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day.

45                               Even where the materials sought would otherwise be subject to litigation privilege, the party seeking their disclosure may be granted access to them upon a prima facie showing of actionable misconduct by the other party in relation to the proceedings with respect to which litigation privilege is claimed.  Whether privilege is claimed in the originating or in related litigation, the court may review the materials to determine whether their disclosure should be ordered on this ground.

46                               Finally, in the Court of Appeal, Létourneau J.A., dissenting on the cross-appeal, found that the government’s status as a “recurring litigant” could justify a litigation privilege that outlives its common law equivalent.  In his view, the “[a]utomatic and uncontrolled access to the government lawyer’s brief, once the first litigation is over, may impede the possibility of effectively adopting and implementing [general policies and strategies]” (para. 42).

47                               I hesitate to characterize  as “[a]utomatic and uncontrolled” access to the government lawyer’s brief once the subject proceedings have ended.  In my respectful view, access will in fact be neither automatic nor uncontrolled.

48                               First, as mentioned earlier, it will not be automatic because all subsequent litigation will remain subject to a claim of privilege if it involves the same or related parties and the same or related source.  It will fall within the protective orbit of the same litigation defined broadly.

49                               Second, access will not be uncontrolled because many of the documents in the lawyer’s brief will, in any event, remain exempt from disclosure by virtue of the legal advice privilege.  In practice, a lawyer’s brief normally includes materials covered by the solicitor-client privilege because of their evident connection to legal advice sought or given in the course of, or in relation to, the originating proceedings. The distinction between the solicitor-client privilege and the litigation privilege does not preclude their potential overlap in a litigation context.

50                               Commensurate with its importance, the solicitor-client privilege has over the years been broadly interpreted by this Court.  In that light, anything in a litigation file that falls within the solicitor-client privilege will remain clearly and forever privileged.

51                               I hasten to add that the Access Act  is a statutory scheme aimed at promoting the disclosure of information in the government’s possession.  Nothing in the Act suggests that Parliament intended by its adoption to extend the lifespan of the litigation privilege when a member of the public seeks access to government documents.

52                               The language of s. 23 is, moreover, permissive.  It provides that the  Minister may invoke the privilege.  This permissive language promotes disclosure by encouraging the Minister to refrain from invoking the privilege unless it is thought necessary to do so in the public interest.  And it thus supports an interpretation that favours more government disclosure, not less.

53                               The extended definition of litigation, as I indicated earlier, applies no less to the government than to private litigants.  As a result of the Access Act , however, its protection may prove less effective in practice.  The reason is this.  Like private parties, the government may invoke the litigation privilege only when the original or extended proceedings are pending or apprehended. Unlike private parties, however, the government may be required under the terms of the Access Act  to disclose information once the original proceedings have ended and related  proceedings are neither pending nor apprehended.  A mere hypothetical possibility that related proceedings may in the future be instituted does not suffice.  Should that possibility materialize — should related proceedings in  fact later be instituted — the government may well have been required in the interim, in virtue of the Access Act , to disclose information that would have otherwise been privileged under the extended definition of litigation.  This is a matter of legislative choice and not judicial policy.  It flows inexorably from Parliament’s decision to adopt the Access Act .  Other provisions of the Access Act  suggest, moreover, that Parliament has in fact recognized this consequence of the Act on the government as litigator, potential litigant and guardian of personal safety and public security.

54                               For example, pursuant to s. 16(1)(b) and (c), the government may refuse to disclose any record that contains information relating to investigative techniques or plans for specific lawful investigations or information the disclosure of which could reasonably be expected to be injurious to law enforcement or the conduct of lawful investigations. And, pursuant to s. 17, the government may refuse to disclose any information the disclosure of which could reasonably be expected to threaten the safety of individuals. The special status of the government as a “recurring litigant” is more properly addressed by these provisions and other legislated solutions.  In addition, as mentioned earlier, the nature of government litigation may be relevant when determining the boundaries of related litigation where multiple proceedings involving the government relate to common issues with closely related causes of action.  But a wholesale expansion of the litigation privilege is neither necessary nor desirable.

55                               Finally, we should not disregard the origins of this dispute between the respondent and the Minister.  It arose in the context of a criminal prosecution by the Crown against the respondent.  In criminal proceedings, the accused’s right to discovery is constitutionally guaranteed.  The prosecution is obliged under Stinchcombe to make available to the accused all relevant information if there is a “reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence” (p. 340).  This added burden of disclosure is placed on the Crown in light of its overwhelming advantage in resources and the corresponding risk that the accused might otherwise be unfairly disadvantaged.

56                               I am not unmindful of the fact that Stinchcombe does not require the prosecution to disclose everything in its file, privileged or not. Materials that might in civil proceedings be covered by one privilege or another will nonetheless be subject, in the criminal context, to the “innocence at stake” exception — at the very least: see McClure. In criminal proceedings, as the Court noted in Stinchcombe:

The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. [p. 340]

57                               On any view of the matter, I would think it incongruous if the litigation privilege were found in civil proceedings to insulate the Crown from the disclosure it was bound but failed to provide in criminal proceedings that have ended.

V

58                               The result in this case is dictated by a finding that the litigation privilege expires when the litigation ends.  I wish nonetheless to add a few words regarding its birth.

59                               The question has arisen whether the litigation privilege should attach to documents created for the substantial purpose of litigation, the dominant purpose of litigation or the sole purpose of litigation.  The dominant purpose test was chosen from this spectrum by the House of Lords in Waugh v. British Railways Board, [1979] 2 All E.R. 1169.  It has been adopted in this country as well: Davies v. Harrington (1980), 115 D.L.R. (3d) 347 (N.S.C.A.); Voth Bros. Construction (1974) Ltd. v. North Vancouver School District No. 44 Board of School Trustees (1981), 29 B.C.L.R. 114 (C.A.); McCaig v. Trentowsky (1983), 148 D.L.R. (3d) 724 (N.B.C.A.); Nova, an Alberta Corporation v. Guelph Engineering Co. (1984), 5 D.L.R. (4th) 755 (Alta. C.A.);  Ed Miller Sales & Rentals; Chrusz; Lifford; Mitsui; College of Physicians; Gower.

60                               I see no reason to depart from the dominant purpose test.  Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of  the broadly interpreted solicitor-client privilege.  The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.  As Royer has noted, it is hardly surprising that modern legislation and case law

[translation] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [p. 869]

Or, as Carthy J.A. stated in Chrusz:

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]

61                               While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.  In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.

62                               A related issue is whether the litigation privilege attaches to documents gathered or copied — but not created — for the purpose of litigation.  This issue arose in Hodgkinson, where a majority of the British Columbia Court of Appeal, relying on Lyell v. Kennedy (1884), 27 Ch. D. 1 (C.A.), concluded that copies of public documents gathered by a solicitor were privileged. McEachern C.J.B.C. stated:

It is my conclusion that the law has always been, and, in my view, should continue to be, that in circumstances such as these, where a lawyer exercising legal knowledge, skill, judgment and industry has assembled a collection of relevant copy documents for his brief for the purpose of advising on or conducting anticipated or pending litigation he is entitled, indeed required, unless the client consents, to claim privilege for such collection and to refuse production. [p. 142]

63                               This approach was rejected by the majority of the Ontario Court of Appeal in Chrusz.

64                               The conflict of appellate opinion on this issue should be left to be resolved in a case where it is explicitly raised and fully argued.  Extending the privilege to the gathering of documents resulting from research or the exercise of skill and knowledge does appear to be more consistent with the rationale and purpose of the litigation privilege.  That being said, I take care to mention that assigning such a broad scope to the litigation privilege is not intended to automatically exempt from disclosure anything that would have been subject to discovery if it had not been remitted to counsel or placed in one’s own litigation files. Nor should it have that effect.

VI

65                               For all of these reasons, I would dismiss the appeal.  The respondent shall be awarded his disbursements in this Court.

The reasons of Bastarache and Charron JJ. were delivered by

66                               Bastarache J. — I have read the reasons of Fish J. and concur in the result.  I think it is necessary to provide a more definitive and comprehensive interpretation of s. 23  of the Access to Information Act , R.S.C. 1985, c. A-1  (“Access Act ”), however, so as not to leave open the possibility of a parallel application of the common law rule regarding litigation privilege in cases where the Access Act  is invoked. I therefore propose to determine the scope of s. 23 and rule out the application of the common law in this case.

67                               Here, the government institution has attempted to refuse disclosure by claiming litigation privilege pursuant to s. 23  of the Access Act .  The question of whether these documents are covered by litigation privilege only arises once it is decided that s. 23 includes litigation privilege within its scope.  The question is whether Parliament intended that the expression “solicitor-client privilege” in s. 23 also be taken to include litigation privilege.  Whether s. 23 is interpreted so as to include litigation privilege or not does not constitute a departure from litigation privilege per se.  Either way, the privilege is left unaffected by the legislation.     In my view, litigation privilege cannot be invoked at common law to refuse disclosure which is statutorily mandated.    Either Parliament intended to include litigation privilege within the phrase “solicitor-client privilege” or litigation privilege cannot be invoked.

68                               It is unclear, from a legal standpoint, why the government would be able to refuse a statutory duty to disclose information by claiming litigation privilege as a matter of common law.  In Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 875, this Court held that legislation may infringe solicitor-client privilege (let alone litigation privilege), though such legislation would be interpreted restrictively.  The Access Act  is such legislation and it is not unique in mandating disclosure of certain information. Corporations’ legislation, legislation governing certain professions, securities legislation, to name but a few examples, include statutory provisions that require certain persons to disclose information/documentation to directors, tribunals or governing bodies.  It has  not been open to those persons to resist disclosure on the basis of solicitor-client or litigation privilege.  However, where related litigation arises, those persons will often argue that the compulsory disclosure to an auditor (for example) does not amount to a waiver of the privilege (see Interprovincial Pipe Line Inc. v. M.N.R., [1996] 1 F.C. 367 (T.D.)).  In that case, the appellants had disclosed legal advice to their auditors pursuant to s. 170  of the Canada Business Corporations Act , R.S.C. 1985, c. C-44 .  Before the Federal Court, they argued that this did not constitute a waiver of the privilege.  The judge cited the following passage from this Court’s decision in Descôteaux, at p. 875:

1.    The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.

2.    Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3.    When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4.    Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively. [Emphasis added; p. 377.]

69                               It is my view, however, that as a matter of statutory interpretation an exemption for litigation privilege should be read into s. 23.  In 1983, litigation privilege was merely viewed as a branch of solicitor-client privilege.  This means that Parliament most likely intended to include litigation privilege within the ambit of “solicitor-client privilege”.  Amato v. The Queen, [1982] 2 S.C.R. 418 (per Estey J., dissenting), and R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 358-60, suggest that the incorporation of the common law concept of solicitor-client privilege into the Access Act  does not freeze the development of the common law for the purposes of s. 23 at its 1983 state.

70                               Nonetheless, my view is that the two-branches approach to solicitor-client privilege should subsist, even accepting that solicitor-client privilege and litigation privilege have distinct rationales.  The Advocates’ Society, intervener, suggests at para. 2  of its factum that:

At an overarching level, litigation privilege and legal advice privilege share a common purpose: they both serve the goal of the effective administration of justice.  Litigation privilege does so by ensuring privacy to litigants against their opponents in preparing their cases for trial, while legal advice privilege does so by ensuring that individuals have the professional assistance required to interact effectively with the legal system.

71                               Reading litigation privilege into s. 23  of the Access Act  is the better approach because, in fact, litigation privilege has always been considered a branch of solicitor-client privilege.  As the reasons of my colleague acknowledge, at para. 31, “[t]hough conceptually distinct, litigation privilege and legal advice privilege serve a common cause: The secure and effective administration of justice according to law.  And they are complementary and not competing in their operation.”

72                               Second, in General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.), at p. 336, Carthy J.A. commented that “[w]hile solicitor‑client privilege stands against the world, litigation privilege is a protection only against the adversary, and only until termination of the litigation.”  Thus, even if litigation privilege is read into s. 23  of the Access Act , it is not clear that the Crown could properly invoke it as against a third party, such as the media.  This is also a question to be dealt with as a matter of statutory interpretation.  In my view, once the privilege is determined to exist, s. 23 grants the institution a discretion as to whether or not to disclose. Although litigation privilege is understood as existing only vis-à-vis the adversary in the litigation (Chrusz), the effect of s. 23 is to permit the government institution to refuse disclosure to any requester so long as the privilege is found to exist.

73                               I would also disagree with the reasons of Fish J., at para. 5, that “we are not asked in this case to decide whether the government can invoke litigation privilege.”  This appeal turns on the proper interpretation of s. 23  of the Access Act . Either litigation privilege must be read into s. 23 or it must be acknowledged that the Crown cannot invoke litigation privilege so as to resist disclosure under the Access Act . The consequences of this latter option would have to be considered in the context of the other exemptions provided for by the Act — including those contained in ss. 16 and 17 and outlined at para. 54 of the reasons of my colleague:

For example, pursuant to s. 16(1)(b) and (c), the government may refuse to disclose any record that contains information relating to investigative techniques or plans for specific lawful investigations or information the disclosure of which could reasonably be expected to be injurious to law enforcement or the conduct of lawful investigations.  And, pursuant to s. 17, the government may refuse to disclose any information the disclosure of which could reasonably be expected to threaten the safety of individuals.

74                               For the reasons expressed by Fish J., I agree that the Minister’s claim of litigation privilege fails in this case because the privilege has expired.

75                               I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant:  Deputy Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitors for the intervener The Advocates’ Society:  Torys, Toronto.

Solicitor for the intervener the Information Commissioner of Canada:  Information Commissioner of Canada, Ottawa.