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Evidence - Privilege - Solicitor-Client (6). Chad v. Canada (National Revenue) [criminal search and seizure on lawyer's records: CCC 488.1]
In Chad v. Canada (National Revenue) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order which "struck Mr. Chad’s Notice of Application for judicial review, without leave to amend".
Here the court considers the solicitor-client privilege documentary seizure provisions of CCC 488.1 ['Examination or seizure of certain documents where privilege claimed']:[15] .... He further says that the duty is a statutory duty that stems from the Supreme Court of Canada’s decision in Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 and its progeny, most notably the Federal Court’s decision in Canada (National Revenue) v. Thornton, 2012 FC 1313.
[16] Lavallee addressed the constitutionality of section 488.1 of the Criminal Code, R.S.C. 1985, c. C-46. Section 488.1 sets out a procedure to be followed when an officer acting under the authority of any Act of Parliament is "“about to examine, copy or seize a document in the possession of a lawyer who claims that a named client of his has a solicitor-client privilege in respect of that document”". The Supreme Court found that procedure, and therefore section 488.1, to be unconstitutional because it more than minimally impaired solicitor-client privilege. Justice Arbour, writing for the majority, emphasized that solicitor-client privilege is a principle of fundamental justice with the consequences that (a) any information protected by the privilege is out of reach of the state, unless the holder of the privilege consents to the disclosure of the information; and (b) the privilege is protected under sections 7 and 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11: Lavallee at paras. 24, 34–46; Mahmoud Jamal & Brian Morgan, "“The Constitutionalization of Solicitor-Client Privilege”" (2003) 20 Supreme Court Law Review (2d) 213 at 226. Section 7 provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As for section 8, it provides that everyone has the right to be secure against unreasonable search or seizure.
[17] The Minister does not deny that solicitor-client privilege is a principle of fundamental justice with the consequence, highlighted in Lavallee, that any information protected by the privilege is out of the state’s reach if privilege has not been waived: Lavallee at para. 24. Hence, the Minister has no issue with the third step of the "“positive legal obligations”" argued by Mr. Chad, that is, to refrain from using or inspecting documents over which privilege is claimed or that appear on their face to be privileged until any claims of privilege have been determined by a court of competent jurisdiction.
[18] However, the Minister takes issue with the first two steps which would require the Canada Revenue Agency, in the face of vague assertions of possibly privileged documents, to search its records for documents that "“contain or make reference, directly or indirectly, to communications with a solicitor or any agent, employee or associate of a solicitor”" and report back to Mr. Chad and the other individuals on the results of that search. The Minister says that nothing in the case law supports the existence of these obligations.
[19] I agree.
[20] For one, Lavallee does not support the existence of these obligations.
[21] Lavallee concerned documents seized from a law firm, thus, in a context where it was reasonable to assume that the documents were privileged. Here, the Agency obtained documents from third parties without any indication that some could be privileged. As well, Mr. Chad has provided no fact, other than the existence of one privileged document, to lend credence to his belief that the Agency may have other privileged documents.
[22] Moreover, Lavallee provides ten guidelines consistent with the constitutional protection of solicitor-client privilege to govern both the search authorization process and the way a search must be carried out in law offices: Lavallee at para. 49. In essence, guidelines number 1 to 3 describe the conditions that must be met for the issuance of a search warrant with regard to law firms; guideline number 4 says that all documents in the possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession; guidelines number 5 to 7 detail the efforts that must be made to contact the lawyers, clients and privilege holders and give them a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided; guideline number 8 provides that the Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand; guideline number 9 says that where sealed documents are found not to be privileged, they may be used in the normal course of the investigation; and guideline number 10 says that where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court. Guidelines number 1 to 9 cannot apply here because the Agency already has access to the documents. As for guideline number 10—to return privileged documents to the privilege holder—it is part of the third step of the "“positive legal obligations”" argued by Mr. Chad, with which the Minister agrees. As the review of the guidelines confirms, Lavallee does not support the existence of the public legal duty that Mr. Chad articulates.
[23] Equally, Thornton is of no assistance to Mr. Chad. In that case, the Federal Court stated that when an investigating authority comes into possession or becomes aware of documents that may be protected by solicitor-client privilege, every effort should be made to contact the privilege holder, provide them with the opportunity to assert privilege and, if necessary, have the issue of privilege judicially decided: Thornton at para. 24. However, this statement was made in a context that greatly differs from the context here. In Thornton, the Agency asked an accounting firm to provide documents related to a reorganisation undertaken by the firm’s client. The accounting firm provided the documents but told the Agency that its client was asserting privilege in respect of three documents marked "“privileged”". . Derenzis v. Gore Mutual Insurance Co. [government as client] [tribunal as client]
In Derenzis v. Gore Mutual Insurance Co. (Div Ct, 2025) the Divisional Court dismissed a LAT SABS joint appeal-JR (Yatar), here where an issue was the admission in evidence of allegedly privileged affidavit "information and internal Tribunal documents that the affiant obtained as a Tribunal adjudicator".
Here the court considers this issue in the context of solicitor-client privilege:[127] The Tribunal ordered the destruction and enjoined dissemination of the following portions of Dr. Kowal’s affidavit based on solicitor-client privilege:a. Para. 6 regarding mandatory instructions by legal counsel and Vice-Chairs to adjudicators on how to decide adjournments, interlocutory decisions and production requests, including production of log notes;
b. Para. 8 and Exhibit C: a memo from legal counsel setting out procedures to be followed when receiving requests for and deciding adjournments, including the requirement that the decision be reviewed by legal counsel; and
c. Para. 16 and Exhibit F: a bulletin authored by the Duty Team adjudicators and Vice Chairs on various topics. [128] Solicitor-client privilege extends to communications where legal advice is sought or offered or where it is intended to be confidential and extends to government lawyers who provide policy advice and direction outside their legal responsibilities.
[129] As stated in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, at paras. 19-21:19 Solicitor-client privilege has been held to arise when in-house government lawyers provide legal advice to their client, a government agency: see R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at para. 49. In Campbell, the appellant police officers sought access to the legal advice provided to the RCMP by the Department of Justice and on which the RCMP claimed to have placed good faith reliance. In identifying solicitor-client privilege as it applies to government lawyers, Binnie J. compared the function of public lawyers in government agencies with corporate in-house counsel. He explained that where government lawyers give legal advice to a “client department” that traditionally would engage solicitor-client privilege, and the privilege would apply. However, like corporate lawyers who also may give advice in an executive or non-legal capacity, where government lawyers give policy advice outside the realm of their legal responsibilities, such advice is not protected by the privilege.
20 Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered: Campbell, supra, at para. 50.
21 Where solicitor-client privilege is found, it applies to a broad range of communications between lawyer and client as outlined above. It will apply with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that he or she is “in-house” does not remove the privilege, or change its nature. [130] As stated in Pritchard, the fact that it is in-house counsel conveying advice does not remove privilege. However, owing to the nature of the work of in-house counsel having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if privilege arose in the circumstances.
[131] The Tribunal is accorded considerable deference. Here, the adjudicator discussed the ambit of solicitor client communication with the framework of Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860.
[132] The Tribunal found that internal policies with respect to granting an adjournment is part and parcel of the tribunal’s functioning. It is reasonable to find that documents and information relating to discussions with in-house counsel are covered by solicitor-client privilege. The solicitor-client privilege extended to (i) mandatory instructions by legal counsel and Vice-Chairs to adjudicators on how to decide adjournments, production requests, including production of log notes and interlocutory decisions; (ii) a memo from the legal department setting out procedures on how to deal with adjournments and an internal bulletin by them to be followed when receiving requests for and deciding adjournments, including the requirement that the decision be reviewed by legal; and (iii) a bulletin on various topics.
[133] The decision as a whole is transparent, intelligible and justified. The Tribunal’s finding that the sections of the affidavit were protected by solicitor-client privilege was a reasonable exercise of the Tribunal’s authority to control its own processes. . Qualizza v. Canada
In Qualizza v. Canada (Fed CA, 2025) the Federal Court of Appeal grants a motion to set aside a partial appellate notice of discontinuance.
The court consider waiver of privilege, here in a solicitor-client context:[15] Secondly, privilege arises between a lawyer and their client and belongs to the client, not the lawyer: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555 at para. 35. The appellants seem to recognize that the client is entitled to waive privilege, while counsel can do so only with the client’s authorization. Any assertion by the appellants that Mr. Lolacher received privileged information in this case would seem to amount to an acknowledgement that he was a client at the time he received it. Any intentional disclosure of privileged information to someone other than a client would constitute a waiver of privilege by the person disclosing it.If Mr. Lolacher was not a client, as the appellants assert, then information disclosed to him could not remain privileged.
[16] Moreover, any allegation that Mr. Lolacher received privileged information belonging to other appellants and handled it improperly is irrelevant to this motion. It also has not properly been put to this Court. If the appellants wish to have measures put in place to shield allegedly privileged information from the public, they should bring a separate motion in that regard and include therein sufficient detail to identify the allegedly privileged information and demonstrate how it has been mishandled. . De Longte v. De Longte
In De Longte v. De Longte (Ont CA, 2025) the Ontario Court of Appeal allowed an intervention (as an 'added party') in a family law appeal, here by the appellant's former counsel where the appellant raised 'ineffective assistance of counsel' grounds.
The court also allowed the intervenor to augment the record (which is rare for intervenors), here by a sealed affidavit - and issued a declaration that solicitor-client privilege had been waived:[1] The proposed intervener seeks to be added as a party to this appeal. Other than filing an affidavit in response to Mr. De Longte’s allegations of ineffective assistance of counsel and a 15-page factum, he does not seek to augment the record on the appeal. He asks to be able to seek costs and shall be liable for costs. Ms. De Longte consents to the motion. Mr. De Longte opposes it.
[2] The proposed intervener is the former trial lawyer for Mr. De Longte in this family law dispute (“the solicitor”). The trial judge granted his removal as counsel of record prior to the end of the trial because of a breakdown in his relationship with Mr. De Longte.
[3] In his submissions respecting the trial costs and as grounds for his appeal of the trial judgment, Mr. De Longte alleges that he received ineffective assistance from the solicitor during his trial. These allegations include that the solicitor was ineffective in his examination and cross-examination of witnesses, failed to proffer relevant exhibits and did not object to all of the respondent’s tendered exhibits.
[4] On September 17, 2024, Mr. De Longte commenced an action against the solicitor and his firm for professional negligence based on essentially the same allegations of ineffective assistance as he relied on during his trial costs submissions and as he puts forward on his appeal.
[5] Mr. De Longte will seek to file fresh evidence on the appeal in relation to the ineffective assistance of counsel ground. He has asserted other grounds of appeal that are intertwined with the ineffective assistance of counsel allegations.
[6] Rule 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prescribes the criteria for intervention as an added party:13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceedings; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. [7] As interpreted by this court, the nature of the dispute between the parties on appeal is crucial to the determination of whether the intervention should be permitted. Where the intervention is sought in a private dispute, “the standard to be met by the proposed intervener is more onerous or more stringently applied”: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.
[8] Further, the nature of the contribution to be made by the proposed intervener is another important consideration. The proposed intervener’s contribution to the litigation must be useful and more than “mere repetition of the position advanced by a party”: Jones, at para. 29.
[9] Applying these principles to the present case, I am satisfied that the solicitor should be added as a party to the appeal. He does not seek to intervene in the matrimonial issues in dispute between the parties. Rather, he wishes to intervene in the issue of ineffective assistance of counsel that Mr. De Longte pursues on appeal. The trial judge declined to determine this issue, leaving it to be adjudicated on appeal.
[10] The proposed intervention is not novel and has been permitted on appeals in the context of ineffective assistance of counsel allegations. The solicitor has a recognized interest in the subject matter of the ineffective assistance of counsel allegations and is the only party who is in a position to respond to them. As such, the solicitor will be able to complete the record before the appeal panel which will assist in the proper adjudication of this issue. See: Butty v. Butty (2009) 96 O.R. (3d) 713 (C.A.); SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA 291.
[11] Amicus queried the necessity of the intervention. First, the solicitor can provide a full response to Mr. De Longte’s allegations in the existing solicitor’s negligence action. Second, as the claim of ineffective assistance of counsel in a civil context is rarely available, the appeal on that ground may be dismissed as frivolous: W.(D.) v. White (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486; 8150184 Canada Corp. v. Rotisseries Mom’s Express Ltd., 2016 ONCA 115.
[12] Strathy C.J.O. addressed the same concerns about necessity in SMTCL Canada Inc. and concluded at para. 10 of his reasons that intervention was warranted in order to have a full record because “the search for the truth should be an over-arching concern” and “the interests of justice favour a complete evidentiary record.” I would apply the same reasoning to this case.
[13] Moreover, this court’s determination of the issue of ineffective assistance of counsel may resolve all or at least part of Mr. De Longte’s claim against the solicitor, one way or the other. If so, this will benefit the administration of justice and the parties to avoid a multiplicity of proceedings and be in keeping with “the just, most expeditious and least expensive determination of every civil proceeding on its merits” in accordance with the general principles enshrined in r. 1.04 of the Rules.
[14] As for prejudice, there is none. As earlier noted, Ms. De Longte has consented to the intervention. Mr. De Longte was not able to raise any possibility of prejudice. The appeal has not yet been scheduled for hearing and will not be scheduled for some time until Mr. De Longte’s pending motion in the Superior Court to set aside the trial judgement under r. 25(19) of the Family Law Rules, O. Reg. 114/99, has been scheduled and disposed of.
[15] The proposed intervener also requests a declaration that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute. I make that declaration. By his trial costs submissions and grounds of appeal, he has clearly waived that privilege.
[16] While I do not agree with Mr. De Longte’s suggestion that the materials submitted by the solicitor go beyond what was necessary to respond to the allegations of ineffective assistance of counsel, I do agree that, as proposed fresh evidence, they should be filed in a sealed envelope and not form part of the record until the appeal panel accepts the fresh evidence.
[17] Accordingly, order to go as follows:1. The solicitor is granted leave to intervene in Mr. De Longte’s fresh evidence motion and the appeal;
2. I declare that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute;
3. Mr. De Longte shall serve and file his fresh evidence motion in relation to the allegations of ineffective assistance of counsel within 30 days of the release of these reasons;
4. The solicitor may serve and file a responding affidavit in response to the fresh evidence motion and appeal within 30 days of delivery of Mr. De Longte’s fresh evidence motion;
5. The solicitor may cross-examine Mr. De Longte on his affidavit respecting the allegations of ineffective assistance of counsel;
6. Mr. De Longte may cross-examine the solicitor on his responding affidavit;
7. The parties shall agree on the order and schedule for cross-examinations to be completed within 30 days of the delivery of the solicitor’s responding affidavit;
8. The solicitor shall be entitled to deliver a factum not to exceed 15 pages in length;
9. The solicitor shall be entitled to seek costs and shall be liable for costs, in the discretion of the panel hearing the appeal; and
10. If any adjustments need to be made to this schedule, the parties may seek a case conference before Lauwers J.A. [18] The parties shall file any materials related to the fresh evidence motion in a sealed envelope or as directed otherwise by Lauwers J.A. . 1307839 Ontario Limited et. al. v. Klotz Associates et. al.
In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered solicitor-client privilege:Law regarding privilege
Solicitor-client privilege
[20] Solicitor-client privilege is fundamental to the Canadian legal system and has evolved over the years from a rule of evidence to a rule of substantive law: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 17; Descôteaux c. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, [1982] S.C.J. No. 43, at paras. 26-27.
[21] While solicitor-client privilege is not absolute, the Supreme Court of Canada has repeatedly held that it “must be as close to absolute as possible to ensure public confidence and retain relevance”: McClure, at para. 35; Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, [1999] S.C.J. No. 15; R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209; Ontario (Ministry of Correctional Services) v. Goodis, 2006 SCC 31, [2006] 2 S.C.R. 32.
[22] In determining whether a document for which privilege is claimed should be ordered disclosed, the appropriate test to be applied is “absolute necessity”: Goodis, at para. 24.
[23] Privilege may be waived expressly or impliedly. Implied waiver typically happens either by way of disclosure or reliance. Once a privileged document or legal advice has been disclosed, the privilege attaching to it is considered to be lost. If a party claiming privilege pleads or otherwise relies upon a privileged document or legal advice for the purpose of pursuing their position in a legal proceeding, then the privilege is considered lost. Waiver of privilege attaching to a solicitor-client communication will be implied where the communication is “legitimately brought into issue in an action”. Waiver of privilege attaching to legal advice will be implied where a party has put in issue its state of mind and that state of mind has been informed by legal advice received. In determining whether there has been an implied waiver of privilege, the court must balance the principles of fairness and consistency against the importance of solicitor-client privilege: Bank Leu AG v. Gaming Lottery Corp., 43 C.P.C. (4th) 73, at para. 5; McQueen et al. v. Mitchell et al., 2022 ONSC 649, at paras. 59-60; Laliberté, at para. 22.
[24] Once it has been established that a communication is subject to solicitor-client privilege, the party seeking to overcome the privilege bears the onus of establishing that the communication ought to be compelled from the party asserting the privilege: Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276, at para. 76.
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