The Court of Appeal for Ontario recently confirmed the limited circumstances where solicitor-client privilege will be abrogated by a statutory provision.
In Ontario (Auditor General) v. Laurentian University, 2023 ONCA 299, the issue before the court was whether a provision in the Auditor General Act, R.S.O. 1990, c. A.35 (“the Act”) gave the Auditor General the authority to compel Laurentian University to produce information that would otherwise be protected by privilege.
Background
The Auditor General is an independent and non-partisan Officer of the Legislative Assembly of Ontario. Laurentian University is a public, post-secondary institution that has received grants from the Government of Ontario. Laurentian University recently faced some financial difficulties and formally sought creditor protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 on the basis that it was insolvent and unable to meet its payroll obligations.
The Auditor General was asked to conduct a value-for-money audit of Laurentian University. In the course of that audit, the Auditor General sought production of certain documents, which Laurentian refused to produce on the basis that they were privileged.
Lower Court Decision
The application judge agreed with Laurentian that it was not required to produce privileged documents. He noted that while privilege can be abrogated by statute, this requires explicit statutory language demonstrating a clear and unambiguous intent to do so. The application judge concluded that the relevant provisions in the Act did not contain sufficiently explicit language necessary to demonstrate a clear and unambiguous intent to abrogate privilege.
Court of Appeal Decision
The Court of Appeal agreed with the application judge. The court began its reasons by noting that it is well-established that privilege is sacrosanct and is an “important civil and legal right as well as a principle of fundamental justice in Canadian law”.
The court also emphasized the importance of litigation privilege in our adversarial system. Parties can only confidently develop their litigation strategies if they are assured they will not be required to disclose them.
Canadian law has established a high threshold for abrogating privilege. Privilege cannot be abrogated by inference alone. This means that broad language requiring the production of documents will not ordinarily include solicitor-client documents. In short, the Auditor General was asking the court to infer that privileged documents were subject to production, based on the interaction between several sections of the Act. The Court of Appeal agreed with the application judge in rejecting this argument because it would require reading something that was not expressed in the Act.
This recent decision reaffirms the importance that Canadian courts place on protecting solicitor-client privilege. It takes very clear statutory language to abrogate solicitor-client privilege and in the absence of such language, solicitor-client privilege will prevail. It underscores the importance of counsel considering whether to assert privilege, even if there is broad statutory language that may require the production of certain documents. Depending on a close reading of the language used in the statute, privileged documents may not be included.
