Where Privilege Ends: The Line Between Communications and Facts
When clients believe that their communications with legal counsel may become relevant in litigation, a natural instinct is to assume that these communications are automatically protected by solicitor-client privilege. Likewise, counsel can be tempted by the same instinct to assert privilege broadly for their communications with clients. While the instinct is understandable, it can be mistaken.
Solicitor-client privilege protects a specific category of information, that being confidential communications between a lawyer and a client, for the purpose of seeking or giving legal advice. Moreover, it does not protect the underlying facts surrounding the solicitor-client relationship. Facts such as the occurrence of a meeting and the exchange of funds, between a client and a lawyer, are not automatically privileged.
Simply put, solicitor-client privilege does not protect everything that touches the solicitor-client relationship.
In this article, the civil and commercial litigation lawyers at Walker Law examine the test for solicitor-client privilege, explain how courts distinguish between communications, which are often protected, and facts surrounding communications, which are often not protected.
The Three-Part Test for Solicitor-Client Privilege
The foundational test for solicitor-client privilege was articulated by the Supreme Court of Canada (“SCC”) in Solosky v. The Queen.[i] A party looking to assert solicitor-client privilege must establish all three of the following elements:
- There must be a communication between a solicitor and a client;
- That communication must include the seeking, or giving, of legal advice;
- The communication must be intended to be confidential by the parties.
The Distinction Between Communications and Facts
Critically, as the Federal Court of Appeal emphasized in Cowichan Tribes v Canada (Attorney General), only communications are protected by the privilege. All acts of counsel, and all mere statements of fact, fall outside its scope.[ii] This means that records that arise around the solicitor-client relationship, but that do not disclose the content of any communication made for the purpose of obtaining legal advice, are not protected by the solicitor-client privilege.
The SCC addressed the purpose of this distinction in Maranda v. Richer, explaining that solicitor client privilege excludes mere facts.[iii]
Applying the Principle
Predicting how courts will treat a range of records becomes slightly simpler once the line between communications and facts is better understood. However, the distinction is intentionally not finely defined.[iv]
Trust account records are the leading example of a record, arising from the solicitor-client relationship, that is not automatically protected by the privilege. In Wong v. Luu, the B.C. Superior Court considered whether a lawyer’s trust account ledgers were privileged. The court held that trust ledgers record facts (e.g. dates, amounts, and the movement of funds) and are not, on that basis alone, privileged.[v] The court noted, however, that entries must be reviewed to ensure they do not contain information that is tied to the provision of legal advice, which must be removed before production.[vi] The same conclusion was reached in Westra Law Office (Re),[vii] in Alberta, and in R. v. Serfaty, in Ontario.[viii]
Meetings, or the presence of counsel at a meeting, is another good example. In the Cowichan Tribes case referenced above, a party sought to assert privilege on the basis that their lawyer (who was also a committee member) had attended certain meetings. The court rejected the privilege claim, finding that the party had not put forward any evidence showing that legal advice was sought or given on the issue in dispute. The presence of a lawyer at meetings did not, on its own, mean that privileged communications had taken place.
How the Litigation Lawyers at Walker Law Can Help
Privilege disputes come up often in civil and commercial litigation. While the line between what is privileged and what is not privileged may seem clear on paper, it takes careful review and analysis when applied.
The litigation lawyers at Walker Law commonly advise both clients and fellow counsel alike on evidence production issues within civil lawsuits. Contact Walker Law today if you are navigating a dispute that involves questions surrounding the application of solicitor-client privilege.
Tags: Civil Litigation Law, Commercial Litigation Law
[i] Solosky v The Queen, 1979 CanLII 9 (SCC).
[ii] Cowichan Tribes v Canada (Attorney General), 2020 BCSC 1507 (CanLII) at para 66 [Cowichan Tribes].
[iii] Maranda v Richer, 2003 SCC 67 (CanLII) [Maranda].
[v] Wong v Luu, 2015 BCCA 159 (CanLII) at paras 36-39 [Luu].
[vi] Luu at paras 40-42.
[vii] Westra Law Office (Re), 2009 ABQB 391 (CanLII) at para 34.
[viii] R v Serfaty, 2004 CanLII 9060 (ON SC) at paras 47‑54.