Guest Author: David Green, Linden & Associates
Master Josefo’s endorsement clarifies the evidentiary burden to be met by a party asserting solicitor-client privilege. It is not enough to demonstrate that legal advice was sought generally, or that solicitor-client discussions were held about the overall matter. There must be clear and direct evidence that legal advice was sought or obtained specifically on the document over which privilege has been claimed.
In this case, Master Josefo ordered production of a document over which the defence had claimed solicitor client privilege. The document at issue was a letter prepared by the commander of the Toronto Paramedic Services, Nicole Rodriguez, in answer to pre-litigation questions from Plaintiffs’ counsel. Ms. Rodrigues wrote to plaintiffs’ counsel advising that a “statement regarding the addressed questions” would be provided in exchange for a fee. Plaintiffs’ counsel paid the fee but did not receive the “statement” as promised by Ms. Rodriguez. After the commencement of litigation, the Toronto Paramedic Services withheld the “statement” and listed it at Tab 8 of their Schedule B Affidavit of Documents with the description – “draft letter re inquiries not sent because claim initiated.” Solicitor-client privilege was asserted over the “Tab 8 letter.”
To support their privilege claim, the defence tendered affidavit evidence from Ms. Dimmer and defence counsel. There was no affidavit evidence from Ms. Rodriguez, the author of the Tab 8 letter. The affidavit evidence stated that, inter alia:
- The Tab 8 letter was a draft response to inquiries from plaintiffs’ counsel.
- Ms. Rodriguez engaged in-house counsel for the City of Toronto, Dianne Dimmer, to provide legal advice with respect to how to respond to the various inquiries made by plaintiffs’ counsel.
- The Tab 8 letter was part of an ongoing discussion between Ms. Dimmer and Ms. Rodriguez.
- Ms. Rodriguez made the decision not to send the letter as it had not been finalized with input from Ms. Dimmer.
- A decision was made not to finalize the letter in light of the fact that the claim was issued.
Master Josefo noted, however, that there was no direct evidence that Ms. Rodriguez consulted Ms. Dimmer on the Tab 8 letter, that the letter was sent to Ms. Dimmer for her review, that Ms. Dimmer provided legal advice on the letter, and/or that Ms. Dimmer advised that it not be sent. Master Josefo also noted that Ms. Rodriguez’ evidence would have been “direct, relevant, and likely probative” and that her failure to swear an affidavit was “important…as to what is not within the evidence which the defendants rely upon.”
Master Josefo remarked that the defendants’ affidavit evidence was “vague and indirect” and constituted a “careful tap-dance that circled around the Tab 8 letter but never zeroed in on it.” His Honour found that while Ms. Rodriguez likely obtained legal advice generally and discussed the overall matter with counsel, there was insufficient evidence that she sought or received legal advice specifically on that letter. On that basis, Master Josefo ordered production of the letter.
