Alberta – records subject to solicitor-client privilege and involving arbitration proceedings subjected to court review

In Alberta (Municipal Affairs) v. Alberta (Information and Privacy Commissioner), 2019 ABQB 274, Mr. Justice Steven N. Mandziuk examined records relating to arbitration proceedings in regard to which one party claimed solicitor-client privilege. Mandziuk J. demonstrated the process that will apply to such records if and when brought before the court.  His reasons set out the appropriate test for determining whether privilege exists, the practical manner in which the court will receive those records and how the courts must consider them on a document-by-document basis.

Mandziuk J.’s reasons do not disclose the nature of the underlying dispute, a judicial review application. A February 13, 2019 Consent Procedural Order issued by Mr. Justice John J. Gill and referred to by Mandziuk J. at para. 2 is not available online.

The Consent Procedural Order directed Her Majesty the Queen in Right of Alberta (as Represented by the Minister of Municipal Affairs) to provide categories of records over which solicitor-client privilege was claimed.  The records were to be provided in a sealed envelope and later considered by the judge hearing the judicial review application.

The process set out in the Consent Procedural Order followed the direction given earlier by Alberta’s Court of Appeal in Calgary (Police Service) v. Alberta (Information and Privacy Commissioner), 2018 ABCA 114

[3] We are satisfied that on a judicial review application where the dispute centres on whether the documents in question are subject to solicitor client privilege, those documents should be put before the reviewing Court. It is this simple. The issue—whether solicitor client privilege exists with respect to the disputed documents—cannot be properly determined in these circumstances without examining the documents themselves. This approach is consistent with the supervisory role of the Court.

The categories of records are summarized at para. 13 of Mandziuk J.’s reasons:

a) Emails and executive summaries disseminated among members of the internal government client groups or departments that relay or exchange information about ongoing arbitration proceedings and/or advice about arbitrations, experts, legal strategy and related matters with legal counsel included in the email string.

b) Emails exchanged between legal counsel, and between legal counsel and their client groups or departments, providing legal advice, sharing information and making inquiries related to providing legal advice.

c) Briefing notes and analogous reports with legal counsel input concerning arbitration and legal proceedings and otherwise referencing legal advice and opinion.

d) Correspondence between internal legal counsel and legal counsel for arbitration parties.

Mandziuk J. cited para. 26 from Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 for the rationale on solicitor-client privilege and paras 14-21 from Pritchard v. Ontario (Human Rights Commission), [2004] 1 SCR 809, 2004 SCC 31 for a discussion focused on government in-house lawyers.

Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2019 ABQB 109, para. 6 served as the key source to identify the appropriate test for deciding privilege on a document-by-document basis:

1) Is there a communication between a solicitor and a client?

2) Does the communication entail the seeking, giving or receiving of legal advice?

3) Is the communication intended by the parties to be confidential?

4) Is the lawyer acting as a lawyer?

5) What was the purpose for which the record came into existence?

6) Is the particular communication part of a continuum in which legal advice is given?

7) Does the particular communication reveal that legal advice has been sought or given?

8) If there is any privileged information, can it be reasonably severed from the rest of the record, without revealing the privilege?

By referring to Alberta v. Suncor Inc, 2017 ABCA 221 paras 29 and 35, Mandziuk J. also underlined the need for and the expectation that the court will examine each document in a bundle or group of like documents in a bundle.

Mandziuk J. followed case law which urged that courts take “a broad and contextual view of solicitor-client privilege” when assessing the records. He listed the following at para. 19 and provided short excerpts from each to identify the relevant stress placed on that view: Solosky v. The Queen, [1980] 1 SCR 821, 1979 CanLII 9 (SCC); Samson Indian Nation and Band v. Canada, [1995] 2 FC 762, 1995 CanLII 3602 (FCA); Bank of Montreal v. Tortora, 2010 BCSC 1430; and, Mutual Life Assurance Co of Canada v Canada (Deputy Attorney General), [1988] OJ No 1090, 28 CPC (2d) 101 (Ont SCJ).

At paras 18 and 21-24, Mandziuk J. provided illustrations of courts considering if and how privilege applied to third-party communications included as “part of a continuum”.

Mandziuk J.’s reasons then include his findings on solicitor-client privilege but do not breach that privilege by attempting to demonstrate how the qualifying records involved the privilege claimed. In that sense, readers do not see the test applied to particular facts but do know that what the test was and the resulting determinations.

urbitral note – The reasons, and the process set out in the Consent Procedural Order and applied by Mandziuk J., should be of practical application for arbitration practitioners.  The records in question related to ongoing arbitration proceedings.  The reasons, and the treatment of the records, provide insights into how such records may find themselves before the courts and still retain their privilege.  Practitioners can examine the reasons to better anticipate the handling of certain records in other venues if and when their production becomes a disputed issue.