Dockets:
A-350-12
A-351-12
A-358-12
Citation: 2014 FCA 201
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CORAM:
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PELLETIER J.A.
DAWSON J.A.
STRATAS J.A.
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Docket:A-350-12
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BETWEEN:
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THE CHIEF AND COUNCILLORS OF THE GRAND RAPIDS FIRST NATION, BEING
CHIEF OVIDE WILLIAM MERCREDI, COUNCILLOR WILLIAM EUGENE FERLAND, COUNCILLOR
KENNETH GEORGE COOK, COUNCILLOR RONALD JOSEPH BALLANTYNE, on their own behalf
and on behalf of the GRAND RAPIDS FIRST NATION (also known as the MISIPAWISTIK
CREE NATION and the GRAND RAPIDS CREE)
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Appellants
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and
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HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
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Respondent
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Docket:A-351-12
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AND BETWEEN:
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THE CHIEF AND COUNCILLORS OF THE OPASKWAYAK CREE NATION, BEING
CHIEF NORMAN GLEN ROSS, COUNCILLOR BERNICE GENAILLE, COUNCILLOR KAREN INNES,
COUNCILLOR OMAR CONSTANT, COUNCILLOR STAN HEAD, COUNCILLLOR CLARENCE
CONSTANT, COUNCILLOR GARTH FLETT, COUNCILLOR DANNY YOUNG, COUNCILLOR JOHN
PAUL MARTIN, COUNCILLOR EDMIN JEBB, COUNCILLOR KERRY BIGNESS, COUNCILLOR RON
A. CONSTANT, COUNCILLOR GARY COOK on their own behalf and on behalf of the OPASKWAYAK
CREE NATION
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Appellants
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and
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HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
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Respondent
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Docket:A-358-12
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AND BETWEEN:
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ALPHEUS BRASS, FLOYD GEORGE, RALPH THOMAS, RAYMOND CATT, STEVE
YOUNG, WILLIAM JOHN THOMAS, SAM GEORGE, DORIS GEORGE, REGINALD WALKER, ROBERT
WALKER, FRANK TURNER, ALBERT PACKO and CLARENCE EASTER, suing on their own
behalf and on behalf of all other members of the Chemawawin First Nation, and
the CHEMAWAWIN FIRST NATION (now known as CHEMAWAWIN CREE NATION)
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Appellants
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR
JUDGMENT
DAWSON J.A.
[1]
The fundamental issues raised on these appeals
are: i) whether the Federal Court erred in upholding the federal government’s
claim that certain documents are protected from disclosure on discovery on the
ground that they are subject to litigation brief privilege; and, ii) whether
the Federal Court erred in upholding the federal government’s claim to
solicitor-client privilege over documents that the government itself disclosed
to the plaintiffs. For the reasons that follow, I have concluded that the
Federal Court did err, so that the documents at issue should be disclosed as
described later in these reasons.
I.
Factual Background
[2]
In order to understand the asserted claims to
privilege, it is important to understand the underlying dispute between the
parties.
[3]
During the 1960s, Manitoba Hydro began
construction of a hydro-electric dam on the Saskatchewan River, knowing the
project would cause flooding to reserve lands held by the Opaskwayak,
Chemawawin and Misipawistik Cree Nations. Related to that construction, the Province of Manitoba wished to construct a transmission line and provincial highway
through the Misipawistik Cree Nation’s reserve lands.
[4]
Given the negative effects of the dam project on
the appellants’ lands and lifestyle, Canada required Manitoba and Manitoba
Hydro to enter compensation agreements with the affected First Nations.
[5]
After the compensation agreements were
finalized, the affected First Nations took the position that the agreements
were insufficient to compensate for all the social, economic and cultural
losses suffered through the Hydro project. The affected First Nations,
including the appellants, sought and secured funding from Canada for research
and related activities in an effort to negotiate more satisfactory
compensation.
[6]
Negotiations then took place over a number of years,
sometimes involving the participation of Canada, but mostly involving Manitoba and Manitoba Hydro. Negotiations eventually broke down, and in May of 1980 the appellants
filed a statement of claim against Manitoba and Manitoba Hydro. Canada was notified by a letter dated May 2, 1980 that Manitoba and Manitoba Hydro intended to file
third party claims against it.
[7]
Between 1980 and the early 1990s, a number of
letters, position papers, and a legal opinion shared between the appellants and
Canada reflected the appellants’ position that Canada was liable for their
losses; Canada denied responsibility. However, at one point the Minister of
Indian Affairs and Northern Development (DIAND) stated that “should definitive evidence arise during the negotiations proving
a failure by Canada to fulfill its legal obligations, the Federal Government
will negotiate a reasonable and just redress with the [appellants].”
[8]
Throughout the process, lawyers with the
Department of Justice provided legal opinions to Canada, and attended meetings
with the First Nations and their counsel.
[9]
Ultimately, after new compensation agreements
were signed with Manitoba and Manitoba Hydro, the appellants filed statements
of claim against Canada for its involvement in the Hydro project. Since their
inception, the actions have proceeded slowly. This delay in part led Canada to file a motion for summary judgment on the basis of delay, and the application of
limitation periods and the doctrine of laches.
[10]
During this protracted litigation with Canada, the appellants came into possession of approximately 96 documents over which Canada claims privilege. Most of the documents were disclosed through the discovery process
as items listed in Schedule I of Canada’s various affidavits of documents.
[11]
The majority of the documents at issue were
created before litigation was commenced against Canada. Some of the documents
contain legal opinions and communications between the Department of Justice and
DIAND employees. Other documents reference legal opinions in briefing notes and
confidential internal documents which discuss relevant events, negotiations,
settlement proposals and Canada’s potential liability.
[12]
In response to Canada’s advice that it was
seeking summary judgment, the appellants filed motions to compel the production
of additional documents from Canada. Essentially, the appellants sought
disclosure of a number of documents that were never in their possession, but
over which Canada claimed litigation brief privilege.
[13]
Within a few days of receiving this motion, Canada requested that the appellants return any and all privileged documents in their
possession. This request was refused. Canada then reviewed the documents
produced under Schedule I of its various affidavits of documents and discovered
it had disclosed a large number of the allegedly privileged documents in
question. Canada maintained that this disclosure was inadvertent. Subsequently,
Canada filed a motion seeking the return of some 96 allegedly privileged
documents it had disclosed, together with 6 documents that were disclosed to
the appellants through unknown means. This motion was heard at the same time as
the appellants’ motion to compel production of the additional documents.
II.
Judicial History
[14]
The motions for the return of the allegedly
privileged documents and for the disclosure of additional documents were
initially heard by a prothonotary on the basis of common evidence. For reasons
cited as 2011 FC 1102, 398 F.T.R. 26, he dismissed the appellants’ motions for
additional production and allowed Canada’s motion in part. More specifically,
he ordered that all documents produced through the discovery process that were
not subject to solicitor-client privilege (i.e. for which Canada claimed only
litigation brief or settlement privilege) were no longer privileged on the
basis that Canada had failed to show that the documents were inadvertently
disclosed. Canada did not appeal this finding. The Prothonotary further found
that privilege had been established over the documents that were either
disclosed through unknown means or that were never in the appellants’
possession. All documents in the appellants’ possession that were subject to
solicitor-client privilege were to be returned to Canada, on the basis of the
Prothonotary’s finding that the appellants failed to establish that such
privilege had been waived by Canada.
[15]
The appellants appealed the Prothonotary’s order
to a judge of the Federal Court. For reasons cited as 2012 FC 927, 416 F.T.R.
50, the Judge dismissed the appeal, for reasons similar to those of the
Prothonotary. The appellants each appeal from that decision.
III.
The Issues
[16]
While the parties raise a number of issues, in
my view the issues to be decided are as follows:
1.
What is the standard of appellate review to be
applied to the Judge’s decision?
2.
What documents are properly at issue on these
appeals?
3.
Did the Judge err by finding that Canada had established that the undisclosed documents were subject to litigation brief
privilege?
4.
Did the Judge err by finding that Canada’s disclosure of documents it now claims are privileged was inadvertent such that the
privilege was not waived?
5.
Did the Judge err by upholding Canada’s claim to solicitor-client privilege in respect of four documents?
IV.
Consideration of the Issues
2.
What is the standard of appellate review to be
applied to the Judge’s decision?
[17]
An appellate court may interfere with a decision
of a motions judge when the motions judge had no basis on which to interfere
with the decision of a prothonotary, or, in the event such grounds existed, if
the decision of the motions judge was arrived at on a wrong basis or was
plainly wrong (Z.I. Pompey Industrie v. ECU-Line N.V., 2003
SCC 27, [2003] 1 S.C.R. 450, at paragraph 18).
2.
What documents are properly at issue on these
appeals?
[18]
In its appeal, the Chemawawin Cree Nation puts
in issue Canada’s claim to litigation brief privilege over four documents which
the First Nation describes as: the Bloodworth Briefing Note, the First Marion
Paper, the Second Marion Paper, and the Dick Bell Notes. Canada did not disclose these documents to the appellants. The Chemawawin Cree Nation obtained these
documents through unknown means.
[19]
The remaining appellants cast their arguments
more broadly, seeking production of documents described in Appendices A and B
to their memoranda of fact and law. Included in these appendices are the four
documents put in issue by the Chemawawin Cree Nation.
[20]
The Misipawistik and Opaskwayak Cree Nations
challenge the litigation brief privilege asserted by Canada over approximately
119 documents described in Appendices A and B to their memoranda of fact and
law.
[21]
Appendix A itemizes 44 documents over which Canada claimed privilege in its affidavits of documents and which were not disclosed by Canada to the appellants. The Prothonotary and the Judge found that the 44 documents in
Appendix A were subject to litigation brief privilege and found five of those
documents also subject to solicitor-client or settlement privilege. The four
documents put in issue by the Chemawawin Cree Nation are included in Appendix
A.
[22]
Appendix B itemizes 75 documents over which Canada asserts solicitor-client privilege in full or in part. These documents consist of:
64 documents that were previously listed in Schedule I to various of Canada’s affidavits of documents and that were disclosed by Canada to the appellants; and 11
documents that were included in Schedule I of the Chemawawin Cree Nation’s
affidavit of documents.
[23]
Canada argues, and the
appellants conceded, that the only documents properly at issue in Appendix A
are those documents which the Judge found to be subject to litigation brief privilege
without also finding them to be privileged in their entirety on the ground of
solicitor-client or settlement privilege. Given that the appellants do not
challenge the findings of solicitor-client or settlement privilege with respect
to the documents identified by Canada, I agree. This means the documents 16,
21, 26, 27 and 28 in Appendix A to the memoranda of fact and law of the
Opaskwayak and Misipawistik Cree Nations are exempt from disclosure.
[24]
Canada further argues
that the only documents properly at issue in Appendix B are those documents
which were produced through the discovery process to either the Opaskwayak or
Misipawistik Cree Nations because the Chemawawin Cree Nation no longer argues in
its appeal that Canada waived its claim to privilege over documents disclosed
to it.
[25]
Again, I agree. While these three lawsuits are
related, they have not been consolidated and it was for the Chemawawin Cree
Nation to argue any waiver of privilege in respect of documents disclosed only
to it. Consequently, the following documents listed in Appendix B to the
memoranda of fact and law of the Opaskwayak and Misipawistik Cree Nations are
exempt from disclosure: A1, A5, A24, A27, A41, A42, A46, A49, A131, A146, A168,
A171-A178, A47, A50/B12, A51, A52/B14, B15, A53, B16, A54/B17, A58/B20, A59/B21
and A60/B23 (based on the numbering from the Prothonotary’s order).
3.
Did the Judge err by finding that Canada had established that the undisclosed documents were subject to litigation brief privilege?
[26]
The Judge began his analysis of the claim to
litigation brief privilege by articulating the legal principles that were to
govern his analysis of the claim. He noted that litigation brief privilege must
be established by the party claiming the privilege on a document by document
basis. He further noted that to establish litigation brief privilege two
elements must be proven: first, that litigation was ongoing or reasonably
contemplated at the time the document was created; and second, that the
dominant purpose for creating the document was to prepare for that litigation (Blank
v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319).
[27]
This case was argued on the basis the usual test
for litigation privilege applies to communications created by or within a party
to threatened or pending litigation in circumstances where those communications
are not covered by legal advice privilege since they were not prepared for the
purpose of obtaining legal advice. I take no position on whether this
characterization is correct in law.
[28]
The resolution of this issue turns on whether
the Judge erred in his application of the law as he stated it to the case as it
was argued before him. In my view, the Judge did err. I reach this conclusion
on the following basis.
[29]
The Judge’s analysis of the claim to litigation
privilege is contained in paragraphs 151 and 152 of his reasons. There, he
wrote:
151. […] Given the long history of this
dispute, it is hardly surprising that Canada did not produce individualized
affidavits for each disputed document. In my view, however, that is not fatal,
and I must make a decision based upon the evidence that is before me. In my
view, that evidence shows the following:
a. The Plaintiffs had made it clear to Canada that they held Canada
legally responsible and liable to compensate them for losses suffered as a
result of the Hydro Project and/or that Canada would be third partied by
Manitoba;
b. The Plaintiffs were in a position to know that they had a potential
cause of action against Canada throughout the whole period. Mr. Wilson’s
opinion and other documents make this abundantly clear. They informed Canada of this;
c. Mr. Bloodworth’s evidence is that from 1979 to 1992, he and other
DIAND officials
were under the impression that it
was possible that the first nations might bring litigation against Canada at any time. Many of the documents in Canada’s Schedule II were created by Canada with that thought in mind, and sometimes in an attempt to avoid the anticipated
litigation;
d. Mr. Bloodworth expanded on the dominant purpose issue under
cross-examination. He had examined a large number of individual documents and
ticked them to show that “my review of the document the information was prepared (sic),
the persons preparing the information had knowledge of the facts, were aware
there was a possibility of Canada having litigation with the First Nations.” These were
documents from the pre-litigation period. After litigation was commenced, Mr.
Bloodworth used his “understanding of the knowledge of the individual authorizing the
document, the knowledge and experience and qualifications of the individual to
whom the document was addressed and/or who was sending it” to identify
which documents attracted litigation brief privilege. It also has to be borne
in mind that in his affidavit, Mr. Bloodworth gave evidence that “Because of the
positions that I occupied in the federal government, I was and am well-versed
in the various types of privilege that can adhere to government documents.” He was not
challenged on this;
e. Significantly in this case, there are also the documents themselves
that have been made available to the Court and which, in my view, make their
dominant purpose quite clear on their face, as well as the fact that such
purpose is bolstered by the obviously privileged and confidential status of the
information they contain.
152. In the end, the dominant purpose of
the document “necessarily falls to be determined by the facts peculiar to each
case,” as the BCCA said in [Hamalainen (Committee of) v. Sippola,
[1991] B.C.J. No. 3614 (C.A.)]. Taking into account the facts peculiar to this
case, and in particular the evidence referred to above, I think I have to
conclude on a de novo consideration of this issue that, as regards the
documents in question, litigation was in reasonable prospect when the document
was produced and that the dominant purpose for which each document was produced
probably was to seek legal advice or to aid in the conduct of such litigation.
[30]
As the Judge noted in paragraph 151 of his
reasons, Canada adduced no evidence about the dominant purpose for the creation
of any individual document over which litigation brief privilege was claimed.
Mr. Bloodworth’s evidence, quoted by the Judge at paragraph 151(c) was
inadequate to establish that the dominant purpose for the creation of any
document was to receive legal advice or aid in the conduct of litigation. This
is because Mr. Bloodworth’s evidence related only to some of the documents and
those documents were not identified. More importantly, an attempt to avoid
litigation does not equate with receiving legal advice or aiding in the conduct
of litigation.
[31]
Similarly, Mr. Bloodworth’s evidence on
cross-examination, which the Judge referred to at paragraph 151(d), was
insufficient to establish the dominant purpose for the creation of any
particular document. This is because awareness of “a possibility of Canada having litigation with the First Nations” is distinct from the purpose for which a
document was prepared. Additionally, the knowledge, experience and
qualifications of a sender or recipient of a document does not establish the
purpose for which the document was created. Finally, Mr. Bloodworth’s
familiarity with various types of privilege is irrelevant to the determination
of the existence of the privilege. That was a question for the Court, not Mr.
Bloodworth.
[32]
The Judge then relied upon his review of the
documents and found their dominant purpose “quite clear on their face.” I agree
that, in theory, it is possible for the content of a document to establish the
purpose for which the document was created. Therefore, I have reviewed each of
the non-disclosed documents over which Canada claims litigation brief privilege
(found in the confidential part D.5 of the appeal book). With respect, based on
my review, I am not satisfied that the contents of these documents establish
that it is more likely than not that each document was prepared for the
dominant purpose of seeking legal advice or aiding in the conduct of litigation.
[33]
To conclude, the evidence before the Judge was
insufficient to demonstrate on a document by document basis that each of the
undisclosed documents was created for the purpose of seeking legal advice or
aiding in the conduct of litigation.
[34]
While this finding is sufficient to dispose of Canada’s claim to litigation brief privilege over the non-disclosed documents, I am
doubtful that the record supports the finding that litigation was reasonably
contemplated when many of the documents at issue were created. The Judge’s
findings at paragraphs 151(a) and (b) of his reasons fall short of establishing
this.
4.
Did the Judge err by finding that Canada’s disclosure of documents it now claims are privileged was inadvertent such that the
privilege was not waived?
[35]
The Opaskwayak and Misipawistik Cree Nations
argue that the Judge erred in upholding the Prothonotary’s conclusion that Canada’s disclosure of privileged documents was inadvertent. They argue that there was
substantial evidence that the disclosure was advertent and that the Judge ought
to have drawn an adverse inference from Canada’s failure to call evidence from
anyone who had personal knowledge of the circumstances surrounding the
disclosure. Instead, Canada’s evidence was to the effect that it could not
ascertain why so many privileged documents were disclosed and that there was no
evidence of any voluntary decision to disclose privileged documents.
[36]
The Judge was mindful of the evidence that
supported the submission that Canada’s disclosure of privileged material was
deliberate. He summarized this evidence at paragraph 164 of his reasons as
follows:
164. The arguments put forward by the
Plaintiffs for express waiver in this case are that the evidence added the
following factors to the admissions conceded by Canada’s witnesses, and
amounted to the following:
a. Canada listed a large volume of documents in three
separate original affidavits of documents produced between 1998 and 2002 as
non-privileged;
b. Following the listing, Canada disclosed those documents to the
Plaintiffs on numerous occasions over more than a decade;
c. Those disclosures only took place after legal counsel had vetted the
documents for the express purpose of considering whether to claim privilege
over them;
d. Canada’s voluntary disclosure continued with its
supplementary lists of documents produced in 2004;
e. Yet another allegedly “privileged” document was produced in answer to discovery undertakings,
following an examination for discovery in 2005 in the Opaskwayak case;
f. At least three different legal counsel (including current litigation
counsel), and three different case managers, participated in the production of
all of these documents;
g. Canada did not ask for the return of any documents
over which it now asserts privilege until 2009.
[37]
The Judge considered, at paragraph 171 of his
reasons, the evidence that supported Canada’s position that the disclosure was
inadvertent. That evidence was adduced through the affidavit of André Bertrand.
[38]
Mr. Bertrand was a case manager with the
Litigation Management and Resolution Branch (LMRB) of DIAND who was assigned to
this litigation in 2008. In order to prepare his affidavit, he spoke to
colleagues who worked on the files and former case managers. He also reviewed
various documents.
[39]
Contained in his affidavit is useful evidence
with respect to the timing of relevant events. In the actions brought by the
Opaskwayak and Misipawistik Cree Nations:
•
Canada’s affidavits of
documents were sworn on June 17, 2002 and served on the plaintiffs on July 18,
2002.
•
Copies of Canada’s Schedule I documents were
provided to the plaintiffs on September 26, 2002. Contained in those documents
were documents over which Canada now asserts solicitor-client privilege.
•
Supplementary affidavits were sworn by Canada in February of 2005 and served in March of 2005.
•
Copies of documents contained in Canada’s supplementary Schedule I were provided to the plaintiffs in February of 2005.
[40]
In the action commenced by the Chemawawin Cree
Nation:
•
Canada’s affidavit of documents
was sworn on October 21, 1998.
•
Canada provided copies
of its Schedule I documents on October 3, 2007.
[41]
By May 13, 2004, Canada knew that the plaintiffs
had one of the Marion Papers over which it claimed solicitor-client privilege.
On December 22, 2008, counsel for the Chemawawin Cree Nation wrote to Canada asserting waiver over otherwise privileged documents and questioning the correctness of Canada’s Schedule II.
[42]
Notwithstanding, it was not until June 12, 2009,
that Canada sought return of its privileged documents.
[43]
Paragraphs 67 and 70 of Mr. Bertrand’s affidavit
contain the most salient evidence relied upon by the Judge with respect to the
issue of the advertence or inadvertence of Canada’s disclosure:
67. I
have reviewed LMRB’s records and spoken to former case managers on these files
and have not been able to determine how so many of Canada’s privileged or
partly privileged documents found their way into Schedule I. Our records show
that the Brass affidavit was reviewed for privilege by [Department of Justice],
and this would have been standard practice for the Mercredi and Ross affidavits
too. However, several privileged documents were produced when they should not have
been. I am unable to tell whether the review was flawed, or whether a problem
arose in implementing the results of the review, but I encountered nothing in
my review of the files which suggests a deliberate or voluntary decision to
release the documents.
[…]
70. An LMRB case manager swearing an affidavit of documents
does not now, and did not then, have the necessary authority to waive privilege
on behalf of the Crown. Nor can DOJ waive privilege without explicit
instructions from the client department, which must first obtain the necessary
approvals from the deputy minister’s office, at a minimum, and perhaps also from
the upper echelons of other government departments. No such decision has ever
been made, nor has approval ever been sought, to waive Canada’s privilege in this litigation.
[44]
Missing from the affidavit is evidence of the
sort one would expect to find in the case of inadvertent disclosure of
privileged documents: namely, evidence of shock, efforts to find the cause of
the error and demands for the immediate return of the documents.
[45]
On the evidentiary record before him, the Judge
concluded that all of the allegedly privilege documents “were inadvertently
disclosed in a context where there was no intention to waive privilege”
(reasons, paragraph 172).
[46]
In my respectful view, the evidence did not
support that finding of fact.
[47]
At its highest, Mr. Bertrand’s evidence was that
he was unable to explain why the documents were disclosed and his
after-the-fact review did not find direct evidence of an intention to waive the
privilege. This falls short of establishing that the disclosure was
inadvertent. There was no direct evidence that Canada did not intend to waive
its claim to privilege.
[48]
Having disclosed documents in Schedule I of its
various affidavits as to documents, and having neglected to press for the
prompt return of the documents, Canada was obliged to provide more cogent
evidence that it did not intend to waive its claim to privilege.
[49]
Rule 224(1)(d) of the Federal Courts
Rules requires the deponent of an affidavit as to documents to be “an
authorized representative of the Crown” where the Crown is a party to litigation.
Rule 223(2)(a)(ii) requires a list of all documents for which a
claim of privilege is asserted and Rule 223(2)(b) requires a statement
of the grounds on which each claim of privilege is advanced. Rule 224(2)
obliges the deponent to make reasonable inquiries relating to any matter in
question in the action. In light of this regime, to allow Canada to maintain its claim to privilege on the record before us would significantly dilute the
legal standard of care required of a deponent of an affidavit as to documents.
[50]
It follows that Canada’s claim to
solicitor-client privilege has been waived in respect of all documents at issue
that were disclosed to the appellants Opaskwayak and Misipawistik Cree Nations.
Because the Chemawawin Cree Nation did not argue that Canada had waived its privilege to solicitor-client documents provided to it, Canada is entitled to assert solicitor-client privilege in respect of documents provided only to
that First Nation.
5.
Did the Judge err by upholding Canada’s claim to solicitor-client privilege in respect of four documents?
[51]
The Chemawawin Cree Nation takes issue with the
extent to which the three disputed documents in its possession have been
redacted on grounds of solicitor-client privilege. Those documents are the
Bloodworth Briefing Note and the First and Second Marion Papers. Those
documents were not disclosed by Canada and were obtained by the Chemawawin Cree
Nation through unknown means. The fourth document the Chemawawin Cree Nation
puts in issue, the Dick Bell Notes, are not in its possession. These notes are
found in Part D.5 of the appeal book, filed on a confidential basis. Canada claims solicitor-client privilege over one paragraph contained in that note.
[52]
My conclusion that Canada has waived its right
to claim privilege makes it unnecessary to consider the extent of the scope of
the solicitor-client privilege claimed in the three documents in the appellants’
possession. It is necessary to review the claim to solicitor-client privilege
in the Dick Bell Notes. These notes are found at Tab 2 of part D.5 of the
appeal book, filed on a confidential basis. Canada claims solicitor-client
privilege over the last partial paragraph on page 13 and the first partial
paragraph on page 14. This claim does not appear to have previously been
adjudicated.
[53]
The parties agree that the three elements of a
claim to solicitor-client privilege are a communication between a solicitor and
client which entails the seeking or giving of legal advice and which is
intended to be confidential.
[54]
In the paragraph at issue, counsel for Canada recounts matters based on his interpretation of certain events infused with legal
appreciation. I conclude that the claim to solicitor-client privilege is
validly asserted because all three elements of the claim are satisfied.
V.
Conclusion
[55]
For the above reasons, I would allow the appeals
and set aside the order of the Federal Court. Pronouncing the judgment that the
Federal Court should have made with respect to documents at issue in this
appeal (as described above in more detail), I would disallow the claim to
litigation brief privilege, excepting from disclosing those documents or
portions thereof that are covered either by valid claims of solicitor-client or
settlement privilege. Further, I would disallow the claim to solicitor-client
privilege in respect of all documents at issue in this appeal that were
provided by Canada to the Opaskwayak and Misipawistik Cree Nations. Finally, I
would order that the Opaskwayak and Misipawistik Cree Nations together receive
one set of the costs of this appeal and that the Chemawawin Cree Nation receive
its costs of this appeal.
[56]
A copy of these reasons shall be placed on each
Court file.
“Eleanor R. Dawson”
“I
agree.
J.D.
Denis Pelletier J.A.”
“I
agree.
David
Stratas J.A.”
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