The Scope of Solicitor-Client Privilege and Trillium Motor World -Solicitor-client privilege arises where there

has been: “(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice, and (iii) which is intended to be confidential by the parties”: Solosky v Canada, 1979 CanLII 9 (SCC). -Balabel v Air-India, [1988] 2 All ER 246, at p 254 (Eng CA). Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed* so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as “please advise me what I should do.” But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context. *Elsewhere the Court suggests that one should ask if the communication is a "necessary exchange" -Continuum applied -Ascertaining or investigating the facts upon which the advice will be rendered Gower v Tolko Manitoba Inc, 2001 MBCA 11 (CanLII) -Includes advice as to what should be done in the relevant legal context - Samson Indian Nation and Band v Canada, 1995 CanLII 3602 (FCA) -Instructions given, even if about what to communicate to other side - Nixon v Timms, 2012 ABQB 65 (CanLII) (while noting Ontario authority that could suggest otherwise) -Not operational documents that are the product of legal advice (except where they can be said to truly embody and reveal the advice) - Canada (Public Safety and Emergency Preparedness) v Information Commissioner of Canada, 2013 FCA 104 (CanLII)

-2-Trillium v Cassels Brock & Blackwell, 2013 ONSC 1789 -Legal information (versus advice) conveyed from firm to its client not privileged -Distinction often relevant to the existence of s-c relationship, but can’t find cases in which it has been used to demarcate scope of privilege -But... policy heavily favours protecting privilege, which weighs against dissecting the relationship between solicitor and client - Foster Wheeler Power Co v Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc, 2004 SCC 18 at para 41, 42 (citations omitted): In the case of complicated and prolonged mandates, the obligation of justifying each case as one where confidentiality and, by extension, immunity from judicial disclosure apply is poorly adapted to the nature of professional relationships and the safeguards required to maintain secrecy in an effective manner. In a case such as the one before this Court, the client and lawyer would be expected to dissect all facets of their relationship in order to characterize them and consequently invoke immunity from disclosing some elements, but not others. Proceeding in this manner multiplies the risks of disclosing confidential information and further weakens professional secrecy, an institution that the legislature and the courts have afforded strong and generous protection. In such cases, a different method would be preferable. It would be enough to have the party invoking professional secrecy establish that a general mandate had been given to a lawyer for the purpose of obtaining a range of services generally expected of a lawyer in his or her professional capacity. At this stage, there would be a presumption of fact, albeit a rebuttable one, to the effect that all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature. -Why, then, the parsing in Trillum Motor World A. As a matter of principle, conveyance of legal information is not essential enough to an existing s-c relationship? B. Unique context? C. Wrong in law? ... -Text of decision does not at all suggest that "A" is the answer -Arguably "B"

-3-Litigation about whether s-c relationship - documents key and a nonparty held the privilege (very rare scenario) -Firm pleads its retainer was a limited scope retainer (which invites boundary-setting) -Non-party claiming privilege suggested as much (which Court remarks about twice!) -Do not accept that, in more ordinary circumstances, communications btw s-c will so finely parsed based on their subject matter

-Arguing communications are within the continuum - the affidavit -identify and qualify solicitor -identify client and client contacts -identify when retainer or advisory role arose -highlight significance of legal context -limited role if possible – “I do not hold an office” -limited role if possible – “not my role to provide business or policy advice” -attach an index -once the context is set, addressing individual docs becomes easy

Dan Michaluk May 26, 2013