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Legally Speaking

What is legal privilege and how to maintain it

Solicitor-client privilege allows university employees to seek and receive legal advice relating to their work without worrying that these communications will be shared elsewhere.

BY CHERYL FOY | DEC 03 2019

What is legal privilege? Put simply, the law provides the privilege of protection to most communications between a lawyer and her client. This is true across Canada, although the concept of privilege is a common law concept and not equally applicable in Quebec. This privilege is commonly known as solicitor-client or legal-advice privilege and it’s a right of protection for clients of lawyers and licensed paralegals. Generally, the scope and applicability of privilege is poorly understood and underappreciated. Worse still, the protection afforded by privilege can be unintentionally lost. It is important to understand what it is and how to retain it.

In the context of university legal matters, the university is the client. If you work for the university, when you seek legal advice relating to your work, you are one voice of the client. This means that when you send counsel an email asking for advice and counsel responds, the law will support the position that those communications are protected from disclosure in a variety of situations. The privilege belongs to the client and only the client may waive it.

Why is privilege so important?

Maintaining privilege allows a client to freely seek and receive legal advice without worry that the communications will be shared in court or other legal proceedings. In a case involving the University of Calgary, the Supreme Court of Canada confirmed that “the importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilege concerned with the protection of a relationship [between lawyer and client] that has a central importance to the legal system as a whole” (CanLII, 2016, para. 26). In the decision, the Supreme Court observed that without the assurance of the protection of privilege, clients will be reluctant to speak honestly and openly with their counsel, and further that lawyers who have only part of the story are in a poor position to give good legal advice. The Supreme Court confirmed that it is in the public interest that privilege be “jealously guarded” and “set aside in only the most unusual circumstances” (para. 34).

What is not protected by privilege?

Keep in mind that not all communication with counsel is protected. If you ask me which vet I take my dog to or about the effect of the budget on student recruitment, you are clearly not asking for legal advice, and neither your request nor my response will be considered privileged.

But if, for example, you ask for my advice on a legal matter such as the termination of an employee, all of that communication would be protected under solicitor-client privilege.

If, in the same scenario, the terminated employee then indicates an intention to sue the university, another form of privilege called “litigation privilege” attaches to the communications. Generally, litigation privilege attaches when there is pending or ongoing litigation and to communications made in respect of that litigation. This column is focused on legal-advice privilege.

Privilege versus confidentiality

Privilege offers significantly more protection than confidentiality. In the context of a lawsuit in most parts of Canada, parties have a duty to locate and disclose all documents in their possession or under their control that are relevant to the issues in the action. The test is relevance. That disclosure is required regardless of whether the document is also confidential (keeping in mind that there are procedures by which parties may seek additional protection for very sensitive documents). The same applies to privacy law. A document may be marked “confidential,” but if it isn’t exempt from disclosure under applicable privacy laws, the document will have to be produced in response to an access to information request. The important thing to note is that in the context of both lawsuits and access to information requests, solicitor-client privilege will almost always operate to protect documents over which privilege is asserted.

Defending solicitor-client privilege

Universities are regularly called upon to assert privilege to protect records from disclosure. Two notable cases involve the University of Calgary (cited above) and the University of Saskatchewan (CanLII, 2018). In these cases, the universities were dealing with access requests. They were both fighting with their respective privacy commissioners to avoid showing the commissioner their privileged documents. In both cases, the privacy commissioners were interested to see the documents to test whether the privilege asserted was appropriately asserted.

In October 2008, a terminated employee made a request for access to records to the University of Calgary. The request was made under provincial access-to-information legislation. The university disclosed some records but withheld some on the basis that they were protected by solicitor-client privilege. The university ended up in a disagreement with the Office of the Privacy Commissioner about production of these documents. The disagreement persisted through various levels until resolved by the Supreme Court in its decision issued in November 2016, some four years after the university had resolved the case with the terminated employee.

While the case before the Supreme Court focused on technical legal matters such as the standard of review of a privacy commissioner decision, and how to interpret statutory language that purports to limit solicitor-client privilege, it also looked at whether what the university had done in refusing to produce the records was appropriate. In short, the university was successful in defending its decision not to disclose the documents protected by solicitor-client privilege to the Privacy Commissioner and the court took the opportunity to emphasize the importance of protecting privilege.

In the University of Saskatchewan case, the university was dealing with an employee who had a variety of complaints against the university, including a civil lawsuit, a harassment complaint and associated investigation, a grievance and a reprisal complaint. That employee made a request for documents under provincial freedom-of-information legislation. As in the Calgary case, the university refused to disclose documents over which it asserted the protection of privilege.

This case made its way to the Saskatchewan Court of Appeal in 2018. The Court of Appeal found that, while the particular legislation empowered the commissioner to require production of documents protected by solicitor-client privilege, that power should be exercised only when “absolutely necessary.” The court found that the university had rightfully withheld its documents because it wasn’t absolutely necessary for the commissioner to require production of the documents over which solicitor-client privileged was asserted.

Tips for maintaining the protection of privilege

Because it’s an important client right (arguably more protected in Canada than anywhere else in the world), privilege is not easily lost. However, it will be lost if the client waives the protection. University employees can waive privilege by failing to keep legal communications confidential. To maintain the protection of communications with your in-house or external legal counsel:

  1. Create the relationship: Write to counsel directly for legal advice.
  2. Identify the client: Copy only those other employees who really have a need to know – it might be good to work with your counsel to define who is representing the university in this particular matter so that information is shared appropriately.
  3. Assert the privilege: Mark communications “privileged and confidential.”
  4. Maintain confidentiality: Never forward or share privileged and confidential advice from your counsel. If other employees need the advice, too, ask your counsel to share it with them.

With these simple protections in place, you can feel comfortable that you’ve done all you can to protect your communications with counsel. Now settle in and talk to your counsel!

ABOUT CHERYL FOY
Cheryl Foy
Cheryl Foy is university secretary and general counsel, office of the university secretariat and general counsel, at Ontario Tech University.
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