Counsel Comments provided by Dan McDonald, Q.C. and Joanne Luu, Counsel for the Respondent James Emsley Thomas Hooton, as Litigation Representative of the Estate of Carol Mary Lascelles Gault
While the appeals arose from distinct interlocutory issues, they were heard together for reasons of efficiency. This led to an interesting dynamic given that the emergence of "privilege" as the overarching theme. The parties had to walk a fine line because, on the first appeal, the Appellant argued that he was entitled to question Carol's lawyer and accountant on "neutral facts", notwithstanding the principles of solicitor-client and litigation privilege. However, on the second appeal, the Appellant, sought to resist disclosure of the amount of gross legal fees in the quarterly accounting he was ordered to provide as Trustee of the Leslie Gault Estate. He argued that the disclosure of even the amount of gross legal fees— without any description of the services rendered— violated the principles of privilege.
The tension in these arguments was not lost on the parties, as both had to be careful in how they framed the scope of privilege that operated in these appeals.
The Court of Appeal agreed with the Respondent's argument that "[i]t is difficult to perceive of a more pervasive breach of solicitor-client privilege" where a lawyer could be cross-examined on what he was told by his client about her expectations, perceptions, inferences, and knowledge of her potential claim. It would jeopardize the heart of what solicitor-client privilege is meant to protect: frank communications between clients and lawyers. The Court of Appeal held that this also applied to a client's communications with her accountant in contemplation of litigation where a zone of privacy should be protected.
On the second appeal, the Court of Appeal's decision was based largely on its deference to the case management judge and his finding that, in this case, the disclosure of the amount of legal fees could not reveal any communications protected by privilege. In so doing, the Court of Appeal distinguished case authorities that raised a rebuttable presumption that the amount of legal fees paid is privileged, noting that they arose in regulatory or criminal disputes rather than the civil one at bar.
In the end, the Court of Appeal struck the right balance in defining the scope of privilege. It shielded properly privileged information while allowing the disclosure of information that had no reasonable possibility of revealing privileged information."
Counsel Comments provided by Michael A. Waite, Counsel for the Respondent Richard Gilbert, 1512873 Alberta Ltd.
One of the central issues in this Appeal was the scope of protection provided by solicitor-client and litigation privilege. The Appellant was seeking an order requiring a lawyer and accountant retained by Carol Gault to produce records and be examined under oath. Coincidentally, the Appeal was heard shortly after the Supreme Court of Canada released a decision on a similar issue pertaining to the scope of solicitor-client privilege in Canada (Attorney General) v Chambre des notaires du Québec, 2016 SCC 20.
The Appellant argued that the privilege between a client and their lawyer or third party expert does not cover any facts that exist independently of a client's communications. Therefore, these independent facts are producible and can be examined during a questioning. Through the questions asked by the panel during the Appeal and from the written decision, it is clear the Court of Appeal firmly rejects the notion that facts can be parsed from privileged communications. The Court of Appeal referred to Canada (Attorney General) v Chambre des notaires du Québec for further support of this principle. This decision recognizes the practical realities of conduct a questioning under this scenario and the difficulty in avoiding stepping over the line into privileged communications.
Another argument the Appellant relied on was that Carol Gault passed away and was no longer available to be questioned. The lawyer and accountant were the only individuals remaining with the knowledge to answer questions about the facts communicated to them by Carol Gault. From the Appellant's submissions, it was evident that rule 6.8 was essentially being used as a substitute for a full questioning of individuals that are not required to be questioned under rule 5.17. The Court of Appeal agreed and noted that rule 6.8 cannot be used to question individuals that are not listed under rule 5.17. Specifically with respect to experts, there are only limited circumstances where they can be questioned prior to trial.
Canada (Attorney General) v Chambre des notaires du Québec dealt with solicitorclient communications. In this case, the Court of Appeal went further to apply these principles to litigation privilege covering communications between a client and a third party expert. Providing valuable guidance on the scope of litigation privilege in this context."
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