T-1380-88
Kevin Bussey (Plaintiff)
v.
Attorney General of Canada, Her Majesty the
Queen and the Commissioner of the Royal
Canadian Mounted Police (Defendants)
INDEXED AS.' RUSSET V. CANADA (A TTORNEY GENERAL) (Ti).)
Trial Division, Teitelbaum J.—St. John's, May 11;
Ottawa, June 5, 1992.
Practice — Privilege — Application for inspection of docu
ments — Action for damages for financial loss suffered due to
delay in withdrawing criminal charges against applicant —
Defendants claiming solicitor-client privilege re: letter from
Crown Prosecutor recommending no charges be laid — Man
ner of describing documents for which privilege claimed insuf
ficient as almost impossible to clearly understand contents, but
detailed list of documents provided — Litigation must be pre
dominant reason for which document prepared for privilege to
be granted — While facts contained in privileged communica
tion also privileged, one can be questioned on such facts if rel
evant to case — Documents sought privileged as prepared
between "client" and solicitor after prosecution of plaintiff
commenced.
This was an application for inspection of documents, partic
ularly a letter from a Crown Prosecutor to a representative of
the RCMP recommending that charges should not be brought
against the plaintiff. The applicant was arrested and charged
with conspiracy to traffic in narcotics early in 1985. Not until
late in 1986 were the charges withdrawn. The plaintiff claimed
financial loss due to the delay in withdrawing the charges. The
defendants filed an affidavit of documents claiming solicitor-
client privilege for reports, opinions and correspondence
exchanged between their solicitors and the RCMP. The plain
tiff contended that this manner of claiming privilege was insuf
ficient. The plaintiff agreed that solicitor-client privilege pro
tects any correspondence with a lawyer provided that it is
prepared for the purpose of litigation or in contemplation
thereof, but argued that the facts contained in a communication
may not be privileged even if the communication is.
Held, the application should be dismissed.
Rule 448(3) states that a party may treat a bundle of docu
ments as a single document providing "(a) the documents are
all of the same nature; and (b) the bundle is described in suffi-
cient detail to enable another party to clearly understand its
contents." The manner in which the defendants described the
allegedly privileged material made it almost impossible to
clearly understand its contents. It was for that reason that coun
sel for the defendants provided a detailed list of the documents
for which solicitor-client privilege was claimed.
Solicitor-client privilege exists as an exception to the gen
eral principle requiring the fullest possible disclosure. Refer
ence was made to Sauder Industries Ltd. v. Ship "Molda" et
al., wherein it was noted that litigation must be the predomi
nant reason for the preparation of a report in order for privilege
to be claimed and granted. All communications between solici
tor and client in preparation of a case are privileged. The facts
contained in the communication as between client and solicitor
are also privileged, i.e. the document containing the facts is
privileged if it was given as between client and solicitor to pre
pare for litigation. This does not, however, mean that one can
not be questioned on facts relevant to a case if referred to in a
privileged document.
The documents sought were privileged as they were pre
pared for the purpose of the litigation. They were prepared
between "client" and its solicitor after the prosecution of the
plaintiff had commenced.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 448 (as am. by
SOR/90-846, s. 15).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Justason v. Canada Trust (1987), 78 N.B.R. (2d) 317; 198
A.P.R. 317 (Q.B.); Lapointe v. Canada (Minister of Fish
eries and Oceans), [1987] 1 F.C. 445; (1986), 6 F.T.R.
134 (T.D.).
CONSIDERED:
Sauder Industries Ltd. et al. v. Ship "Molda" et al.
(1986), 3 F.T.R. 190 (F.C.T.D.); Dusik v. Newton et al.
(1983), 1 D.L.R. (4th) 568; 48 B.C.L.R. 111; 38 C.P.C.
87 (C.A.).
REFERRED TO:
Central Mortgage and Housing Corporation v. Founda
tion Company of Canada Limited and Travellers Indem
nity Company of Canada et al. (1984), 63 N.S.R. (2d)
402; 141 A.P.R. 402; 7 C.L.R. 179; 43 C.P.C. 66 (S.C.).
APPLICATION for inspection of documents.
Application dismissed.
COUNSEL:
Thomas E. Williams for plaintiff.
Al R. Pringle, Q. C., for defendants.
SOLICITORS:
O'Dea, Strong, Earle, St. John's, for plaintiff.
Deputy Attorney General of Canada for defend
ants.
The following are the reasons for order rendered in
English by
TEITELBAUM J: This is an application for inspection
of documents by the plaintiff, Kevin Bussey, wherein
plaintiff makes the following request:
WHEREAS as pursuant to Rule 476 of the Federal Court Act
S.C. 1990, c. 8 and for the reasons outlined and contained in
the Affidavit attached hereto, the Plaintiff requests that this
Honourable Court grant an Order instructing the Defendants to
disclose to the Plaintiff those documents contained in Schedule
II of the Defendant's Affidavit of Documents and more partic
ular [sic] relating to correspondence between the various
Crown's solicitors and the Royal Canadian Mounted Police.
In his application, plaintiff states:
1) he filed a statement of claim against the defend
ants the Attorney General of Canada and Her
Majesty the Queen (Crown) on July 4, 1988;
2) the defendants filed a statement of defence on
June 8, 1989;
3) the defendants filed an affidavit of documents on
the 12th of March, 1991 when the Crown claimed
privilege to those documents and reports outlined
and contained in Schedule II;
4) the defendants provided plaintiff with a notice to
inspect only those documents where no privilege
is claimed.
Plaintiff states that he wishes to inspect specific
documents contained in Schedule II of the defend
ants' affidavit of documents "as they (should read he
—there is only one plaintiff) feel they are essential in
establishing their case and rebutting the Defendant's
case as outlined in their Defence".
At the hearing before me, counsel for plaintiff left
me with the impression that he really wanted to see
one main document. This document, if it in fact
exists, is an alleged letter written by a Mr. Eaton, a
Crown Prosecutor, to a representative of the Royal
Canadian Mounted Police (RCMP) stating that no
charges should be brought against the Plaintiff.
I think it important to give some background to
better understand the present proceeding.
As I have stated, the plaintiff filed a statement of
claim into the Court Registry on July 4, 1988. Plain
tiff alleges that on or about January 16, 1985, he was
arrested by the RCMP and charged under the Crimi
nal Code [R.S.C. 1970, c. C-341 of Canada. On Janu-
ary 25, 1985, the plaintiff appeared in Court in St.
John's in the Province of Newfoundland for election
and plea. Plaintiff alleges, in paragraph 8 of his state
ment of claim:
8. On July 16th, 1985 an agent of the Defendant wrote the
Plaintiff's lawyer indicating his willingness to withdraw the
above cited charges against the Plaintiff, which said with
drawal was later denied.
Plaintiff also alleges he took numerous steps to
attempt to have a speedy trial but could not do so. In
any event, on November 18, 1986, the plaintiff
alleges that the defendants withdrew all charges
against him. As a result, plaintiff is claiming damages
in that "he has suffered both financial and economic
loss".
As per Rule 448 [Federal Court Rules, C.R.C., c.
663 (as am. by SOR/90-846, s. 15)], the parties to an
action must file and serve an affidavit of documents
listing both privileged and non-privileged documents
in its possession as well as other statements concern
ing documents:
Rule 448. (1) Every party to an action shall file an affidavit
of documents and serve it on every other party to the action
within 30 days from the close of pleadings or such other period
as the parties agree or the Court orders.
(2) An affidavit of documents (Form 19) shall contain
(a) separate lists and sufficient descriptions of all documents
relevant to any matter in issue that
(i) are in the possession, power or control of the party and
for which no privilege is claimed,
(ii) are or were in the possession, power or control of the
party and for which privilege is claimed,
(iii) were but are no longer in the possession, power or
control of the party and for which no privilege is claimed,
and
(iv) the party believes are in the possession, power or con
trol of a person who is not a party to the action;
(b) a statement of the grounds for each claim of privilege in
respect of a document;
(c) a description of how the party lost possession, power or
control of any document and its current location, so far as
the party can determine;
(d) a description of the identity of each person referred to in
paragraph (a)(iv), including the person's name and address,
if known; and
(e) a statement that the party is not aware of any other rele
vant document other than those that are listed in the affidavit
or those that are or were only in the possession, power or
control of another party to the action.
(3) A party may treat a bundle of documents as a single doc
ument for the purposes of an affidavit of documents, if
(a) the documents are all of the same nature; and
(b) the bundle is described in sufficient detail to enable
another party to clearly understand its contents.
(4) A document is in a party's power or control if
(a) the party is entitled to obtain the original document or a
copy of it; and
(b) at least one other party is not so entitled.
(5) The disclosure of a document or its production for
inspection shall not be taken as an admission of its authenticity
or admissibility in the action.
The defendants, in their affidavit of documents,
concerning privileged documents in their possession,
make the following statement:
The following are all of the relevant documents, or bundles or
relevant documents, that are or were in the Crown's posses
sion, power or control and for which privilege is claimed:
Reports, opinions and correspondence exchanged between
the Defendant's solicitors, agents and the Royal Canadian
Mounted Police, their agents and representatives on the
grounds of solicitor/client privilege.
Now plaintiff wants to be able to examine these
documents as he states they are crucial for him "to
help him have a better case and to be in a better posi
tion to attack the Defendants' case".
Counsel for plaintiff contends that the manner in
which defendants expressed that they have docu
ments which they consider privileged is insufficient.
Counsel contends that if defendants are claiming that
certain documents are subject to solicitor-client privi
lege, defendants must, at the least, state what the doc
uments are.
I agree with this submission by plaintiff. Rule
448(3) states that a party may treat a bundle of docu
ments as a single document providing "(a) the docu
ments are all of the same nature; and (b) the bundle is
described in sufficient detail to enable another party
to clearly understand its contents."
It is apparent that the manner in which the defend
ants "described" the allegedly privileged material,
makes it almost, if not impossible, "to clearly under
stand its contents". I am satisfied that counsel for
defendants realized this concern and for that reason
produced a detailed list of the documents for which
defendants are claiming solicitor-client privilege as
per Schedule II of defendants' affidavit of docu
ments.
Counsel for plaintiff submits that plaintiff should
be able to identify the documents, failing which
plaintiff is at a total loss in understanding what are
the documents for which privilege is being claimed
and must he able to see the documents in order to
obtain factual evidence not names of and descriptions
of informers.
Plaintiff submits that the general principle is that
there must be the fullest possible disclosure. The sub
mission is that there must be full, open and complete
disclosure of any and all documents that are relevant.
There is, of course, no disagreement with the
above statement. To temper this broad principle one
must consider that the law allows certain documents
not to be disclosed if there exists a solicitor-client
privilege, that is, a document was prepared for the
purpose of litigation or in contemplation of litigation.
In the case of Sauder Industries Ltd. et al. v. Ship
"Molda" et al. (1986), 3 F.T.R. 190 (F.C.T.D.), at
page 191, Mr. Justice Rouleau states:
The general rule which now prevails contemplates that there is
to be the fullest possible disclosure of all relevant material
capable of throwing light upon the issues of a case.
The dominant purpose rule, which is now being followed in
the Canadian courts, suggests that though there may be a
remote possibility of litigation, along with some other purpose
for which the report may have been ordered, litigation must be
the predominant reason in order for privilege to be claimed and
granted.
Counsel for plaintiff submits and he agrees that the
solicitor-client privilege protects any correspondence
with a lawyer providing it is prepared for the purpose
of litigation or in contemplation of litigation. Counsel
submits that there are exceptions to the privilege. As
an example, counsel states that the facts contained in
a communication may not be privileged even if the
communication is. Counsel submits the case of Dusik
v. Newton et al. (1983), 1 D.L.R. (4th) 568
(B.C.C.A.) where Mr. Justice Seaton speaking for the
Court of Appeal states, at pages 571 and 572:
The general principle of solicitor-client privilege is stated at
8 Wigmore, Evidence (McNaughton rev. 1961), § 2292, p.
554:
Where legal advice of any kind is sought from a profes
sional legal adviser in his capacity as such, the communica
tions relating to that purpose, made in confidence by the cli
ent, are at his instance permanently protected from
disclosure by himself or by the legal adviser, except the pro
tection be waived.
This definition was approved by the Supreme Court of Canada
in Solosky v. The Queen (1979), 105 D.L.R. (3d) 745 at p. 756,
50 C.C.C. (2d) 495, [1980] 1 S.C.R. 821 (per Dickson J.).
There are circumstances that fall outside the definition and
there are exceptions to the definition, but prima facie commu
nications between solicitors and their clients are privileged.
The appellant's argument approaches the matter in this way.
Whether the plaintiff's shares were being sold is a question of
fact. Mr. Newton's knowledge on that fact is in issue. Whether
he gained the knowledge through his solicitor or otherwise, his
knowledge on the question of fact is not privileged. The appel
lant supports this contention with extracts from Susan Hosiery
Ltd., above, including this extract at p. 34:
What is important to note about both of these rules is that
they do not afford a privilege against the discovery of facts
that are or may be relevant to the determination of the facts
in issue. What is privileged is the communications or work
ing papers that came into existence by reason of the desire to
obtain a legal opinion or legal assistance in the one case and
the materials created for the lawyer's brief in the other case.
The facts or documents that happen to be reflected in such
communications or materials are not privileged from discov
ery if, otherwise the party would be bound to give discovery
of them.
I would also note that Mr. Justice Seaton, on pages
572 and 573, goes on to state:
In my view, the reasoning in those cases does not apply to
this case. The questions in issue on this appeal inquire into the
solicitor-client communication. Mr. Harasym did not contend
that the fact within his client's knowledge was privileged, hut
that the communication was privileged. In my view, he was
right in that contention.
Counsel for the appellant has not offered us any case in
which it was held that the communication between the solicitor
and the client was not privileged in so far as it dealt with fact.
In the brief time available, this trial is to start on Monday, I
have not come across a case.
The distinction that was not made by the appellant was made
by Jackett P. at p. 35:
In my view it follows that, whether we are thinking of a let
ter to a lawyer for the purpose of obtaining a legal opinion
or of a statement of facts in a particular form requested by a
lawyer for use in litigation, the letter or statement itself is
privileged but the facts contained therein or the documents
from which those facts were drawn are not privileged from
discovery if, apart from the facts having been reflected in
the privileged documents, they would have been subject to
discovery.
I take this to mean that all communications
between solicitor and client in preparation of a case
are privileged. The facts contained in the communi
cation as between client and solicitor are also privi
leged. That is to say, the document containing the
facts is privileged if it was given as between client
and solicitor to prepare for litigation. This does not
mean that one cannot be questioned on all facts rele
vant to the case even if certain facts are contained in
the privileged document such as a question as to
whether or not, as a matter of a fact, the Crown Pros
ecutor, a Mr. Eaton, recommended not to lay or press
charges against the plaintiff. The recommendation
being made to the RCMP (see Central Mortgage and
Housing Corporation v. Foundation Company of
Canada Limited and Travellers Indemnity Company
of Canada et al. (1984), 63 N.S.R. (2d) 402 (S.C.),
paragraph 14, page 405).
Another exception to the general rule of privilege
for communications between client and solicitor,
according to counsel for plaintiff is public interest
and relevance—fairness of trial.
Counsel submits the case of Justason v. Canada
Trust (1987), 78 N.B.R. (2d) 317 (Q.B.) for the above
principle. In the Justason case, the Judge inspected
the documents upon which privilege was being
alleged and states, at page 320:
... and have come to the view the documents do involve the
question of legal advice being sought and received by the
defendant respecting the administration of the trust in question,
except for B-3 which I shall touch upon later.
Mr. Justice Higgins goes on to state at pages 320,
321 and 322:
Of significance, however, certain of these documents were
written by the plaintiff himself in his capacity as supervisor
respecting the very trust in question, seeking legal advice in
respect thereof on behalf of the defendant, his then employer.
These certain documents therefore, in my view, give rise to
two substantive competing principles. First they are documents
seeking and containing professional legal advice between the
defendant and its legal counsel, and secondly, they comprise
evidence documenting the conduct of the plaintiff, in his
employ, carrying out his responsibilities as supervisor of trust
services, the very issue raised by "the particulars of cause"
filed by the defendant.
The question and resolution of competing principles was
addressed by Lord Edmund-Davies in Waugh v. British Rail
ways Board, [1980] A.C. 521, at p. 543, as follows:
"And in my judgment we should start from the basis that the
public interest is, on balance, best served by rigidly confin
ing within narrow limits the cases where material relevant to
litigation may be lawfully withheld. Justice is better served
by candour than by suppression. For, as it was put in the
Grant v. Downs majority judgment, at p. 686: ' ... the
privilege ... detracts from the fairness of the trial by deny
ing a party access to relevant documents or at least subject
ing him to surprise'."
I believe the total documentation I have inspected may be
grouped into three divisions:
1. General correspondence between the plaintiff, acting as
the defendant's trust officer, and the defendant's legal advi
sor, seeking and receiving advice and direction respecting
the trust agreement in question and how the trust was being
administered. There are also two sheets of figures and calcu
lations with no indication who prepared them or to what
specific purpose they were prepared, and I refer specifically
to B-3.
2. Memoranda internal to the defendant's legal advisor's
law office, essentially comprising direction by a senior part
ner in this law firm, the defendant's legal counsel, to junior
lawyers in his office to research certain points of trust law
together with the research prepared by these lawyers.
3. Legal advice sought by officers of the defendant other
than the plaintiff and dated after the plaintiff's dismissal.
In my view the documentation contained in the first division
ought to be produced and made available for inspection and
those documents in divisions two and three ought not to be dis
closed.
The documentation in division number one, in my view, is
most relevant to this matter, particularly to the plaintiff, in the
sense that this documentation refers to when the plaintiff
sought advice; what advice he sought; the analysis and assess
ment of the trust agreement in question, which the defendant
alleges the plaintiff handled incompetently; and the advice and
direction the plaintiff was receiving from defendant's legal
counsel in the face of emerging problems. This documentation,
in my view, has relevance independent of the "legal advice"
aspect of the exchanges.
In my view the interest of "relevance" and "fairness of the
trial" must here prevail over the privilege claimed by the
defendant. I also order B-3 disclosed as there appears to be no
reason advanced why it ought not to be disclosed.
The balance of the documentation I have examined does not
possess that added element of the plaintiff's personal involve
ment and, thus, in my view, the solicitor-client privilege
claimed must prevail with regard to such remaining documen
tation.
In the above case, the plaintiff was asking for the
production of certain documents which were written
by himself in his capacity as supervisor respecting a
trust in issue wherein he was seeking legal advice on
behalf of his employer. This is not as in the case at
bar. In the case at bar, no letters were sent to the
defendants' solicitors before any charges were laid—
the plaintiff never "acted" for the defendants.
With respect, I am satisfied that this case is not
analogous to the one at bar.
Another exception to the general rule for privilege
is that of waiver, according to counsel for plaintiff.
Counsel for plaintiff states this waiver may be
expressly or implicitly given. Counsel refers to para
graph 4 of the statement of defence together with the
last sentence of paragraph 9 of the statement of
defence as well as the last sentence of paragraph 16
of the statement of defence for the proposition that
the defendant implicitly waived any privilege in that
it is the letter sent by Eaton which, according to
plaintiff, shows that there never existed a prima facie
case.
4. As to paragraph 4 of the Statement of Claim, he says that the
Plaintiff was charged that he did unlawfully conspire together,
the one with the other, with three (3) other persons to commit
the indictable offence of trafficking in a narcotic, to wit., Can
nabis resin, in violation of Section 4(1) of the Narcotic Con
trol Act, thereby committing an offence contrary to Section
423(1)(d) of the Criminal Code of Canada. He further says
that the Plaintiff was also charged with two counts of posses
sion of narcotics for the purpose of trafficking contrary to Sec
tion 4(2) of the Narcotic Control Act.
9.... He says in answer to paragraph 10 of the Statement of
Claim, that the Defendant's servants including the Defendant's
Crown prosecutor were of the opinion throughout the time
referred to in paragraph 10 of the Statement of Claim that there
was a `prima facie' case against the Plaintiff.
16.... He further says that the evidence against the Plaintiff
was reviewed by the Defendant's Crown prosecutor and it was
determined that a `prima facie' case existed to charge the
Plaintiff with the offences referred to in paragraph 4 of the
Statement of Claim.
Counsel submits for consideration the case of
Lapointe v. Canada (Minister of Fisheries and
Oceans), [1987] 1 F.C. 445; (1986), 6 F.T.R. 134
(T.D.) for the above-mentioned principle. In the
F.T.R. summary of the case [at page 134], it states:
The plaintiffs alleged that federal authorities acted without
authority in cancelling certain fishing licences. The plaintiffs
alleged that the authorities breached the rules of natural justice
and that their servants acted maliciously in cancelling the
licences and claimed damages for loss of profits and conse
quential and punitive damages. The authorities refused to
answer questions on discovery and provide documents respect
ing legal opinions which were sought by them. They claimed
such opinions were privileged. The plaintiffs applied under
Federal Court Rule 465(18) for an order requiring the authori
ties to answer questions and provide documents.
The Federal Court of Canada, Trial Division, held that the
legal opinions were privileged, but that the authorities waived
the solicitor-client privilege in their statement of defence.
Accordingly, the court allowed the plaintiffs' application but
ordered that access to the legal opinions would be available
only to the parties for their confidential use.
On page 446 F.C., Mr. Justice Cullen makes the
following observation:
The allegation is that the defendants breached the rules of natu
ral justice, their servants acted maliciously in requesting the
Minister of Fisheries and Oceans (Minister) to cancel the
licences, and later claim damages for loss of profits and conse
quential and punitive damages.
In the case at bar, there is no allegation that the
defendants breached the rules of natural justice and I
am of the view that this case is also not applicable to
the case at bar. Furthermore, the opinions solicited in
the case before Mr. Justice Cullen were obtained
before cancelling of the licences in issue as opposed
to the communication being looked for in the present
case which, if it exists, came into being after the
plaintiff was charged for his alleged criminal activity.
I am satisfied that the documents being sought are
privileged as these documents were prepared for the
purpose of the litigation. The documents were pre
pared between "client" and its solicitor after the pros
ecution against plaintiff had commenced.
The application is dismissed with costs.
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