Lana v. University of Alberta, 2012 ABQB 97

Court of Queen ’ s Bench of Alberta Citation: Lana v. University of Alberta, 2012 ABQB 97 Date: 20120210 Docket: 1103 08496 Registry: Edmonton Between: Stephen Dalla Lana Applicant - and - Governors of the University of Alberta and University Appeal Board Respondents Corrected judgment: A corrigendum was issued on February 17, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.

Paul Belzil _______________________________________________________ [ 1 ] On May 26, 2011, the Applicant, by way of an Originating Application, requested Judicial Review of a decision of the University Appeal Board (UAB) of the University of Alberta which imposed sanctions on the Applicant for misconduct while he was a student at the University.

[ 2 ] On July 20, 2011 the Respondent filed a Certified Record of Proceedings. On September 30, 2011 the Applicant filed an application seeking an order requiring the Respondent to file a further and better Certified Record, specifically, production of all records of communications between the UAB and its counsel Greg Harding Q.C. [ 3 ] These Reasons for Judgment deal only with the preliminary application and not the application for Judicial Review.

Factual Background [ 4 ] The disciplinary proceedings against the Applicant arose as a result of a complaint made by a female student of the University of Alberta who alleged that in November 2010 the Applicant, who was also a student at the University, sexually assaulted her. Campus Security Services investigated the complaint and recommended that the Applicant be expelled. [ 5 ] The Applicant appealed this recommendation to the UAB. A hearing was scheduled for July 20-22, 2010. Ms. Iva Spence was the Appeals Coordinator for the UAB. The Applicant was represented by Brian Peterson, Q.C.

Greg Harding, Q.C. was counsel for the UAB but not present at the hearing. Several days before the hearing commenced Peterson raised with Spence that he had in his possession some recordings of witness statements. [ 6 ] These discussions and their aftermath are outlined in the decision of the UAB on page 2: Several days before the hearing, Ms Spence [the Appeals Coordinator] was informed by Mr Peterson about some recordings of witness statements in his possession and he asked whether those recordings needed to be provided to the UAB and Ms Palichuk in advance of the hearing.

Mr Peterson was advised to make the recordings available to Ms Palichuk immediately, and that the UAB would deal with the question of admissibility of these statements at the hearing, should the need to do so arise. Mr Greg Harding was consulted regarding these documents at the preliminary stage. During cross examination of Mr Dustin Crowe, Ms Palichuk referred to some of the comments made by Mr Crowe in the transcripts of these interviews.

It was decided by the UAB (after further consultation with Mr Harding) that the transcripts would be made available for the witness and the UAB to refer to during questioning, but that they would not be admitted as evidence in the proceedings. [ 7 ] The UAB denied the appeal but vacated the expulsion order replacing it with a three year suspension together with some other sanctions.

Position of the Parties [ 8 ] The Applicant, while acknowledging that solicitor-client privilege would ordinarily preclude production of communications between the UAB and its counsel, argues that privilege has been waived or alternatively that the UAB breached a standards of procedural fairness thus the exception to solicitor-client privilege for future crimes or fraud is engaged. [ 9 ] The Respondents argue that all of its communications with its counsel are protected by solicitor-client privilege and that the UAB only consulted with its counsel. It denies that it engaged in any unlawful conduct.

Solicitor-Client Privilege

[10] The scope of solicitor-client privilege was defined in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31where the following passages appear at paras. 14 and 15: A. Solicitor-Client Privilege Defined 14 Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. Clients must fee free andprotected to be frank and candid with their lawyers with respect to their affairs so that the legal system, as we have recognized it, mayproperly function: see Smith v.

Jones, (SCC), [1999] 1 S.C.R. 455, at para. 46. 15 Dickson, J. outlined the required criteria to establish solicitor-client privilege in Solosky v. The Queen, (SCC),[1980] 1 S.C.R. 821, at p. 837, as: “(

i) a communication between solicitor and client; (ii) which entails the seeking or giving of legaladvice; and (iii) which is intended to be confidential by the parties”. Though at one time restricted to communications exchanged in thecourse of litigation, the privilege has been extended to cover any consultation for legal advice, whether litigious or not: see Solosky, at p.834. 16 Generally, solicitor-client privilege will apply as long as the communication falls within the usual and ordinary scope of theprofessional relationship. The privilege, once established, is considerably broad and all-encompassing.

In Descôteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860, the scope of the privilege was described, at p. 893, as attaching “to all communicationsmade within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, andconsequently even before the formal retainer is established”.

The scope of the privilege does not extend to communications: (1) wherelegal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawfulconduct: see Solosky, supra, at p. 835. [11] It is always open to a client to expressly waive solicitor-client privilege and it is also recognized that a client may be deemedto have waived the privilege. [12] In Ed Miller Sales & Rentals Ltd. v.

Caterpillar Tractor Co., (AB KB), [1992] 5 W.W.R. 531 Berger, J.(as he then was) discussed the principles which applied to deemed waiver of solicitor-client privilege at para. 7: The applicable principles, in my view, are the following: 1. The solicitor-client privilege does not extend to the very issue of an action: Nowak v. Sanyshyn; WN Construction Ottawa Ltd. v.Nowak, (1979) (ON SC), 23 O.R. (2d) 797, 9 C.P.C. 303 (H.C.); 2. A party may waive privilege by a pleading as well as by actually giving evidence of a privileged communication: Rogers v.

Bank ofMontreal (BC SC), [1985] 4 W.W.R. 503, 61 B.C.L.R. 239, 57 C.B.R. (N.S.) 251 (S.C.); 3. Privilege is waived when a party, by his testimony or pleading, voluntarily raises a defence or asserts a claim which makes hisknowledge of the law relevant: Alberta Wheat Pool v. Estrin and Dawson Resources Ltd., (AB KB), [1987] 2 W.W.R.532; Nowak v. Sanyshyn (supra). In this regard, I respectfully agree with the comments of Mason, J. in Petro Can Oil and Gas Corporation Ltd. et al v.

Resource ServiceGroup Ltd. (AB KB), 32 C.P.C. (2d) 50 at p. 54: “The underlying rationale for finding implied waiver in such circumstances is based on fairness. It would be unfair to permit a party who

has set up a claim or defence based on privileged communications to preclude his opponent from discovering against that claim byrelying upon the privilege. If privilege were successfully raised, the opponent would be left with no reasonable method of exploring thevalidity of the claim or defence.” 4. A party asserting reliance upon legal advice will not be permitted to engage in selective waiver. Such an assertion places in issue allof the party’s knowledge of the relevant law however derived. The analogous principle is that of completeness. See also: Great InsuranceCompany v. Home Insurance Company

(1981) W.L.R. 529; 8 Wigmore, para. 2327, p. 636. [13] In R. v. Campbell, (SCC), [1999] 1 S.C.R. 565 the Supreme Court of Canada held that the RCMP wasdeemed to have waived solicitor-client privilege because it relied on its consultation with the Department of Justice lawyers in support ofits argument that it acted properly in the course of an investigation. [14] The following passages appear in para. 69: 69 In Rogers v.

Bank of Montreal, (BC CA), [1985] 4 W.W.R. 508 (B.C.C.A.), the bank put a defaulting customerinto receivership, and the customer sued both the bank and the receiver, who then launched third party proceedings at each other. Thebank said it had relied on the receiver's advice in putting the customer into receivership. The receiver denied detrimental reliance on itsadvice, and wanted to know what other professional advice the bank had received at the relevant time. In particular, the receiver wantedto know what legal advice the bank had received from its own lawyers, MacKimmie Matthews.

The bank claimed solicitor-clientprivilege over this correspondence. In rejecting the bank's claim of privilege, the court, per Hutcheon J.A., stated as follows, at p. 513: The issue in this case is not the knowledge of the bank. The issue is whether the bank was induced to take certain steps in reliance uponthe advice from the receiver on legal matters. To take one instance, the receiver, according to the bank, advised the bank that it was notnecessary to allow Abacus [the plaintiff debtor] time for payment before the appointment of the receiver.

A significant legal decision hadbeen rendered some months earlier to the opposite of that advice. The extent to which the bank had been advised about that decision, notmerely of its result, is important in the resolution of the issue whether the bank relied upon the advice of the receiver. The Court goes on to adopt the reasoning of the United States District Court for the District of Columbia in United States v.

Exxon Corp.,94 F.R.D. 246 (1981) as follows, at pp. 248-49: Most courts considering the matter have concluded that a party waives the protection of the attorney-client privilege when he voluntarilyinjects into the suit the question of his state of mind. For example, in Anderson v. Nixon, 444 F.Supp. 1195, 1200 (D.D.C. 1978), JudgeGesell stated that as a general principle “a client waives his attorney-client privilege when he brings suit or raises an affirmative defensethat makes his intent and knowledge of the law relevant.” ... [15] In Freyberg v.

Fletcher Challenge Oil and Gas Inc., 2007 ABQB 80 Kent J. emphasized that the principle in Exxon cannotbe interpreted to mean that any consultation with counsel creates a waiver of solicitor-client privilege. [16] Kent J. made the following observations at para. 5: Exxon, the court requires that the party relies primarily or solely on the advice at issue in making its decision. A broader

interpretation asstated in Stuart Olsen cannot make sense. When clients are given advice, it is precisely for the purpose of making decisions so as toinstruct counsel. That invokes their state of mind. To create a waiver, it cannot be as simple as obtaining confirmation that a personreceived legal advice on the issue at hand and acted upon it. If that was the case, then the first two questions in any cross-examination inany action would be to create that waiver. There must be evidence from the party about whose privilege is in issue that they simplyadopted their solicitor's advice without any independent reflection. . .

[17] The Applicant argues that there was a deemed waive of solicitor-client privilege because the UAB’s decision references“consultations” with its counsel. [18] I do not accept that consultation with counsel, standing alone, constitutes waiver of solicitor-client privilege. If thissuggestion were accepted, solicitor-client privilege in the context of administrative tribunals would cease to have any real meaning. [19] In Scott & Associates Engineerings Ltd. v.

Ghost Pine Windfarm, 2011 ABQB 339 Mahoney J. at para. 55, observed thatfor there to be a waiver of solicitor-client privilege, there must be evidence that the party simply accepted the solicitor’s advice withoutany independent reflection. [20] The Oxford Dictionary defines the word “consult” as meaning to seek information or advice. Consultation with a lawyer isnot synonymous with following a lawyer’s advice. [21] The two paragraphs of the Board’s decisions relied upon by the Applicant do not reflect that the UAB entirely relied on oreven that it heavily relied on counsel’s advice.

Indeed, the UAB may have declined to follow any advice given to it by its counsel. Thewords of these paragraphs in their plain meaning must be interpreted to mean that the UAB consulted with counsel in the process ofreaching its decision. [22] On this evidence, the UAB did exactly what any prudent administrative tribunal should do, that is, consult with counsel witha view to eliminating or at least reducing reviewable error. In doing so, the UAB in no way waived solicitor-client privilege.

Is the Future Crimes or Fraud Exception to Solicitor-Client Privilege Engaged? [23] Solicitor-client privilege is not absolute. It is recognized that solicitor-client privilege will not be recognized in circumstanceswherein the client is pursuing dishonest goals which is often referred to as the future crimes and fraud exception to solicitor-clientprivilege. [24] The narrow scope of this exception was described in Blood Tribe Department of Health v. Canada (Privacy Commissioner),2008 SCC 44 at para. 10: 10 . . .

While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substanceapplicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwiseacting as a lawyer rather than as a business counsellor or in some other non-legal capacity: Solosky v. Canada (1979), (SCC), [1980] 1 S.C.R. 821, at p. 837; . . . A rare exception, which has no application here, is that no privilege attaches tocommunications criminal in themselves or intended to further criminal purposes: Descôteaux, at p. 881; R. v.

Shirose, (SCC), [1999] 1 S.C.R. 565 (S.C.C.). [25] A number of cases have emphasized that the exception only applies if the client is knowingly pursuing unlawful ends. [26] In R. v. Campbell, supra, Binnie J. reviewed the law in this area.

Paragraphs 57-60 are instructive: 57 The language of the court in Cox and Railton (“... if the client has a criminal object in view in his communications with hissolicitor...”) implied that this exception can only apply where a client is knowingly pursuing a criminal purpose, and it is so laid down byProfessor Wigmore (Wigmore on Evidence, supra, sec. 2298, at p. 573) where he gives an affirmative answer to the question, “Must . . .the advice be sought for a knowingly unlawful end?” 58 Although the issue has apparently not been directly considered in the Canadian case law, the Wigmore view was subsequentlyespoused by the authors of “The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv.

L. Rev. 730, wherethey state as follows, at pp. 730-31:

The attorney-client privilege has always been subject to the qualification that protection is denied to communications wherein a lawyer's assistance is sought in activity that the client knows to constitute a crime or tort. The scope of the “ future crimes ” exception is circumscribed on a public policy basis, as explained at p. 731: The knowledge requirement minimizes the effect of the exception on proper communications; absent this requirement legitimate consultations would be inhibited by the risk that their subject matter might turn out to be illegal and therefore unprivileged.

Moreover, counseling against unfounded claims or illegal projects is an important part of the lawyer's function. 59 This explanation is consistent with the statement of the principle of Lamer J. in Descôteaux , supra, at p. 881: Confidential communications, whether they relate to financial means or to the legal problem itself, lose that character if and to the extent that they were made for the purpose of obtaining legal advice to facilitate the commission of a crime. The exception to the formation of the privilege was elaborated upon by Lord Parmoor in O'Rourke v.

Darbishire , [1920] A.C. 581 (H.L.) , at p. 621 : The third point relied on by the appellant, as an answer to the claim of professional privilege, is that the present case comes within the principle that such privilege does not attach where a fraud has been concocted between a solicitor and his client, or where advice has been given to a client by a solicitor in order to enable him to carry through a fraudulent transaction. If the present case can be brought within this principle, there will be no professional privilege, since it is no part of the professional duty of a solicitor either to take

part in the concoction of fraud, or to advise his client how to carry through a fraud. Transactions and communications for such purposes cannot be said to pass in professional confidence in the course of professional employment. 60 A leading U.S. case that considers this question is State ex rel. North Pacific Lumber Co. v. Unis , 579 P.2d 1291 (Or. 1978) . In that case, it was alleged that an employer illegally eavesdropped on an employee's telephone conversations.

The employer stated that before undertaking this eavesdropping, it had sought legal advice and it claimed solicitor-client privilege over these communications. The employee sought the disclosure of this advice, but disclosure was refused. The court made the following pertinent comment, at p. 1295: We approve of the requirement that, in order to invoke the exception to the privilege, the proponent of the evidence must show that the client, when consulting the attorney, knew or should have known that the intended conduct was unlawful.

Good-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if that action should later be held improper. [ 27 ] Counsel for the Applicant conceded that there is no suggestion that the UAB was engaged in criminal or tortious illegality but argued that the future crimes and fraud exception applies because the it allegedly breached the duty of procedural fairness owed to the Applicant.

It was then argued that this alleged breach constituted an unlawful act thus justifying invoking the exception. [ 28 ] In support of his argument, counsel for the Applicant cited a number of cases wherein courts have commented on the need for administrative tribunals to be transparent in their decision making. None of these cases deal with solicitor-client privilege and accordingly do not assist the Applicant ’ s position. [ 29 ] The issue of whether the UAB committed any reviewable error will be determined in the Judicial Review application which has not yet been argued.

However, even if I were to accept for the purposes of this application only that the UAB breached administrative law duties owed to the Applicant, I do not accept that this would be the type of illegality required to trigger the future crimes and fraud exception to solicitor-client privilege.

[ 30 ] There is no evidence that the UAB knowingly intended to perpetrate any unlawful acts. Rather, the uncontroverted evidence before me is that the UAB, in good faith, was carrying out its mandate in hearing an appeal from a decision made by a University official. [ 31 ] In Blank v.

Canada (Minister of Justice) , 2010 FCA 183 at para. 20 the Federal Court of Appeal specifically rejected the argument that alleged “ misconduct ” by departmental officials would be sufficient to trigger the exception. [ 32 ] If the Applicant ’ s argument were accepted, virtually any error committed by an administrative tribunal could be used to justify lifting solicitor-client privilege which would render nugatory a hallmark of our legal system. Conclusion and Order [ 33 ] The application for production of a further and better Certified Record of Proceedings is dismissed.

Costs of this application may be spoken to following the conclusion of the application for Judicial Review. Heard on the 3 rd day of February, 2012. Dated at the City of Edmonton, Alberta this 10 th day of February, 2012. R. Paul Belzil J.C.Q.B.A. Appearances: Simon Renouf, Q.C. Simon Renouf Profession Corporation for the Applicant Greg A. Harding, Q.C. Gregory Sim Field LLP for the Respondents _______________________________________________________

Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice R. Paul Belzil _______________________________________________________ Under Appearances, Gregory Sim should be listed as appearing along with Greg A. Harding Q.C. Appearances: Simon Renouf, Q.C. Simon Renouf Profession Corporation for the Applicant Greg A. Harding, Q.C. Gregory Sim Field LLP for the Respondents