Privilege is Sacrosanct: Ontario Court of Appeal Affirms High Threshold for Abrogation of Privilege

May 18, 2023

Written By Scott Bower, Preet Gill, Russell Kruger and Kristina Dimitrov

Legislation must show a clear, explicit and unequivocal intention to abrogate privilege before a party is required to disclose privileged information, the Ontario Court of Appeal reiterated in its recent decision of Ontario (Auditor General) v. Laurentian University, 2023 ONCA 299 [Laurentian University]. Inferences and open-textured language are not enough.

Privilege, which protects some information from having to be disclosed, is a hallmark of the Canadian legal system. Legal advice and litigation privilege are necessary to build and maintain a relationship of trust and confidence between a lawyer and client and to allow for a zone of privacy for preparing for litigation. Canadian courts have repeatedly emphasized the fundamental importance of safeguarding privilege in Canadian law.

In Laurentian University, the Court considered whether the Auditor General of Ontario had the authority to request and review disclosure of privileged information and records from a government grant recipient, the Laurentian University of Sudbury. The Auditor General initiated a value-for-money audit of Laurentian's operations. The Auditor General requested privileged documents as part of the audit based on the Auditor General Act (the Act), which says the Auditor General is "entitled to have free access to all books … reports, files and all other papers". Laurentian declined the request on the basis that it was not required to disclose privileged documents.

The Court of Appeal upheld the decision of the Superior Court of Justice denying the disclosure request. Noting that "solicitor-client privilege is not merely a rule of evidence, but an important civil and legal right as well as a principle of fundamental justice in Canadian law" and that "[l]itigation privilege is also fundamental to the proper functioning of our legal system", the Court emphasized the importance of safeguarding privilege absent a clear legislative intent to the contrary.

Turning to the language of the Act at issue, the Court noted that "privilege cannot be abrogated by inference", and "[o]pen-textured language governing production of documents will be read not to include solicitor-client documents". Therefore, the fact the Act allowed the disclosure of privileged information to the Auditor General without it resulting in a waiver was not sufficient to abrogate privilege. Instead, abrogation of privilege requires language that is "clear, explicit, and unequivocal", as is seen in other legislation such as the Law Society Act and the Health Insurance Act. The application judge's reliance on this other legislation, enacted over the same timeframe, where privilege was abrogated in express language, was endorsed, as was his reference to Hansard debates and extrinsic aids.

Laurentian University thus upholds and affirms the importance of privilege under Canadian law. Privilege is sacrosanct, a "civil right of supreme importance" that must "remain as close to absolute as possible" to be effective. 

If you have any questions about this case, please reach out to the authors of this blog.

Authors