HZ v Unger, 2012 ABQB 18

Court of Queen ’ s Bench of Alberta Citation: HZ v Unger, 2012 ABQB 18 Date: 20120110 Docket: 0403 14625 Registry: Edmonton Between: HZ Plaintiff - and - Linda Unger, Boris Nahornick, Terrence Nugent, Bruce Massie, The Alberta Victims of Crime Financial Benefits Program (Formerly Known As the Crime Compensation Board) and John Doe Defendants Docket: 0703 15607 And Between: HZ Plaintiff -and- Lionel Whittaker, Her Majesty the Queen In Right of Alberta, Linda Unger, Cal Wrathall, The Victims of Crime Financial Benefits Program and John Doe Defendants Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _________________________________________

Reasons for Decision of the Honourable Mr. Justice K.G. Nielsen _________________________________________ I. Introduction [ 1 ] HZ has commenced two separate actions against The Victims of Crime Financial Benefits Program and a number of individuals involved with it, alleging the abuse of public office, deceit, and fraudulent concealment. The two actions commenced by Ms. HZ are proceeding at the same time and I was appointed as the Case Management Judge with respect to the actions. Ms.

HZ seeks production of all solicitor-client privileged documents related to a letter prepared by counsel for the Defendants which was forwarded to counsel for Ms. HZ. II. Background [ 2 ] On September 29, 1982, Ms. HZ applied for compensation pursuant to provisions of what was then known as the Criminal Injuries Compensation Act , R.S.A. 1980 c. C-33, as amended. Claims pursuant to this Act were heard by the Crimes Compensation Board. The Criminal Injuries Compensation Act was repealed on November 1, 1997 and the Victims of Crime Act , S.A. 1996 c. V-3.3 ( Act ) was proclaimed in force. Ms.

HZ ’ s claim for compensation has, thereafter, proceeded under the Act (now the Victims of Crime Act , R.S.A. 2000, c. V-3 , as amended). [ 3 ] From May 1981 to November 1, 1997 the Defendant, Linda Unger, was the secretary of the Crimes Compensation Board, and from November 1, 1997 she was the Administrator, Financial Benefits within the Victims Financial

Section of the Ministry of the Solicitor General and Public Security. [ 4 ] Pursuant to the Act , victims of crime can apply for compensation to the Director of the Victims of Crime Financial Benefits Program. Applicants can request review of decisions of the Director by the Criminal Injuries Review Board. Decisions made under the Criminal Injuries Compensation Act can be reviewed, rescinded, confirmed or varied ( s. 14.01(4) (a)). [ 5 ] On October 22, 2002, the Director rendered a decision in relation to Ms.

HZ ’ s application for reconsideration of a previous Order. [ 6 ] On May 21, 2003, Robert Lee, counsel for Ms. HZ, wrote to Ms. Unger inquiring as to the reasons why the Crimes Compensation Board had not provided the complete file relating to Ms. HZ to either Ms. HZ or her counsel (the Lee Letter). Mr. Lee raised other matters in this letter. [ 7 ] In September 2003, Lionel Whittaker was a lawyer with the Alberta Department of Justice and was counsel to the Director. [ 8 ] On September 17, 2003, Ms. Unger provided Mr. Whittaker with information to assist in replying to the matters raised in the Lee Letter.

On September 24, 2003, Mr. Whittaker spoke to Ms. Unger to finalize the response to the Lee Letter. [ 9 ] On September 24, 2003, Mr. Whittaker wrote to the Criminal Injuries Review Board providing information in response to the inquiries in the Lee Letter (the Whittaker Letter). The Whittaker Letter was copied to Mr. Lee and on September 24, 2003, Mr. Whittaker provided a copy to Ms. Unger.

[ 10 ] On July 22, 2004, Ms. HZ issued her first Statement of Claim. [ 11 ] On December 7, 2005, Ms. Unger was examined for discovery and on November 8 and 9, 2006, Ms. Unger was cross- examined on an affidavit which she had sworn in support of an application for

Summary Dismissal. In her testimony at examination for discovery, Ms. Unger indicated that she did not recall events surrounding Ms. HZ ’ s file or requests for disclosure. In the cross- examination on affidavit, Ms. Unger testified to matters which were inconsistent with information contained in the Whittaker Letter. [ 12 ] On December 3, 2007, Ms. HZ issued her second Statement of Claim. [ 13 ] On December 21, 2007, Graham McLennan, of the McLennan Ross LLP law firm, which has been at the relevant times counsel for the Defendants in both actions, wrote to Mr. Lee and advised that Ms.

Unger wished to clarify her evidence on her examination for discovery and examination on affidavit (the McLennan Ross Letter). [ 14 ] The entirety of the McLennan Ross Letter is as follows: Ms. Unger has reviewed portions of her evidence during her examination for discovery in December 2005 and cross-examination which took place in November 2006. That evidence needs to be clarified and Ms. Unger clarifies that evidence as follows:

a) Ms. Unger does not have a specific recollection of events in September 2003 (which Ms. Unger noted on several occasions in her examinations).

b) Having reviewed documents, Ms. Unger acknowledges that, as a result of discussions between her and Mr. Whittaker, Mr. Whittaker issued the letter of September 24, 2003; that a copy of that letter was provided to Ms. Unger by Mr. Whittaker on September 24, 2003; and further, that the letter accurately conveys information that Ms. Unger provided to Mr. Whittaker at the time. [ 15 ] Ms. Unger passed away on April 8, 2010.

As there was not sufficient time for her to be examined de bene esse , the Defendants provided a limited waiver of solicitor-client privilege over the documents in respect of dealings between Mr. Whittaker and Ms. Unger leading up to the preparation of the Whittaker Letter. [ 16 ] Ms.

HZ now applies to have the limited waiver of solicitor-client privilege provided by the Defendants in relation to the Whittaker Letter extended to all documents related to the McLennan Ross Letter. [ 17 ] In June 2010, at a two day Case Management Application, I ruled, inter alia , that there had been no waiver of solicitor-client or litigation privilege between Mr. Whittaker and the Defendants or between McLennan Ross LLP and the Defendants. [ 18 ] At that time I also directed that the Defendants produce all documents between McLennan Ross LLP and Ms. Unger related to the McLennan Ross Letter.

On February 28, 2011 the Court of Appeal remitted this issue to me for reconsideration with directions to review the disputed documents and rule as to whether the limited waiver should extend to any of those documents. [ 19 ] All documents in relation to the Whittaker Letter and the McLennan Ross Letter have been provided to me for review. Of these, only the documents in relation to the Whittaker Letter have been provided to Mr. Lee. The Defendants provided written submissions to me with respect to this issue. Ms. HZ chose not to provide written submissions to me with respect to this issue.

III. Issue [20] The issue before me is whether the limited waiver of solicitor-client privilege by the Defendants applicable to all documentsrelated to the Whittaker Letter should be extended to apply to all documents related to the McLennan Ross Letter. IV. Analysis [21] R. Manes and M.

Silver in Solicitor Client Privilege in Canadian Law (Markham, Ont. : Butterworths, 1993) discuss therationale for the solicitor-client privilege rule (at 1, 5): The seeking of legal advice is inextricably wrapped up in the concept of a normative body of law encompassing a system of substantiveand procedural rights, dedicated to the provision of a fair trial. As such, solicitor-client privilege can be seen as the crux of an advancedlegal system. Its development represents the departure from the era of the Star Chamber, trial by ordeal, and the Inquisition.

Solicitor-client privilege protects the integrity of the relationship most vital to the continuing operation of the legal system. In this sense,the law of solicitor-client privilege can be seen to have survival value for the legal system - for it is the law’s method of safeguardingitself and its processes in an adversarial system. ... Although privilege may act as a fetter on the discovery of truth, its continued existence demonstrates the priority given to theinviolability of solicitor-client communications.

The client must be assured that what the client confides to his solicitor is protected fromdisclosure, otherwise the client will be restrained in what the client chooses to disclose, and as a result, the solicitor’s advice will beflawed. [22] The matter of waiver of solicitor-client privilege has been considered in many cases. Those that are particularly relevant tothe issue before me are S & K Processors Ltd. v. Campbell Ave. Herring Producers Ltd., (BC SC), [1983] 4 W.W.R.762, [1983] B.C.J. No. 1499 (S.C.), Transamerica Life Insurance Co. of Canada v.

Canada Life Assurance Co. (1995), (ON SC), 27 O.R. (3d) 291, [1995] O.J. No. 3886 (Gen.Div.), and Chapelstone Developments Inc. v. Canada, 2004 NBCA 96,277 N.B.R. (2d) 350. While the Courts in these cases did not address the precise issue before me, their reasoning is helpful to theanalysis in this case. [23] In S & K Processors Ltd., McLachlin J. (as she then was) commented (at 764-65): Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of theprivilege; and (2) voluntarily evinces an intention to waive that privilege.

However, waiver may also occur in the absence of an intentionto waive, where fairness and consistency so require... ... ... In the cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention towaive the privilege at least to a limited extent. The law then says that in fairness and consistency it must be entirely waived. In Rogers v.Hunter, supra, the intention to partially waive was inferred from the defendant’s act of pleading reliance on legal advice.

In Harich v.Stamp ..., it was inferred from the accused’s reliance on alleged inadequate legal advice in seeking to explain why he had pleaded guiltyto a charge of dangerous driving. In both cases, the plaintiff chose to raise the issue. Having raised it, he could not in fairness bepermitted to use privilege to prevent his opponent exploring its validity. [24] In Transamerica Life Insurance Co. of Canada, Sharpe J. made these comments (at paras. 41 and 42):

... It is plainly not the law that production of one document from a file waives the privilege attaching to other documents in the same file.It must be shown that without the additional documents, the document produced is somehow misleading... ... The waiver rule must be applied if there is an indication that a party is attempting to take unfair advantage or present a misleading pictureby selective disclosure ... [25] In Chapelstone Developments Inc. v. Canada, Robertson J.A. on behalf of the court commented: 58 I am not prepared to promulgate a rule of law that waiver of

part is a waiver of all. ... In my view, the better approach is the oneadopted by the British Columbia Court of Appeal in Power Consol (China) Pulp Inc. v. B.C. Resources Invt. Corp., ... In that case, theCourt held that it is preferable to look at all of the circumstances of the case and ask whether the conduct in disclosing part of acommunication is likely to mislead the other party or the court, so as to require privilege to be lifted with respect to the whole of thecommunication. ... [26] The principles outlined in these three cases are supported by the decisions in Guelph (City) v.

Super Blue Box Recycling Corp. (2004), (ON SC), 2 C.P.C. (6th) 276, [2004] O.J. No. 4468 (S.C.J.); Leadbeater v. Ontario (2004), (ON SC), 70 O.R. (3d) 224, [2004] O.J. No. 1228 (S.C.J.); K.F. Evans Ltd.v. Canada (Minister of Foreign Affairs) (1996), 106 F.T.R. 210, [1996] F.C.J. No. 30; R. v. Basi, 2009 BCSC 777, [2009] B.C.J. No.1298; and Ed Miller Sales and Rentals Ltd. v.

Caterpillar Tractor Co., (AB KB), [1992] 5 W.W.R. 531, [1992] A.J.No. 564 (Q.B.). [27] In this case the Defendants clearly knew that solicitor-client privilege existed with respect to the documents between Ms.Unger and her counsel at the time, Mr. Whittaker, in relation to the Whittaker Letter. When Ms. Unger’s subsequent counsel, McLennanRoss LLP, became involved in the matter, it became apparent to them that certain of Ms. Unger’s evidence given on examination fordiscovery and on cross-examination on affidavit in relation to the Whittaker Letter required clarification.

This led to the McLennan RossLetter. [28] Subsequently, but prior to Mr. Lee having an opportunity to examine Ms. Unger on the clarification of Ms. Unger’s evidenceset out in the McLennan Ross Letter, Ms. Unger, unfortunately, passed away. This set of circumstances led to the Defendants voluntarilywaiving solicitor-client privilege in relation to the documents between Ms. Unger and Mr. Whittaker respecting the Whittaker Letter.This indicates to me that, in the circumstances as they unfolded, the Defendants determined that it would be fair to Ms.

HZ to waivesolicitor-client privilege in relation to the documents in question so that Ms. HZ would have available to her the information in relation tothe communications that in fact took place between Ms. Unger and Mr. Whittaker. This is reasonable, given that it was no longerpossible to question Ms. Unger with respect to discrepancies. That was done and Ms. HZ is now in possession of the documents relatingto such communications. [29] The documents to which Ms. HZ wishes to extend the waiver relate to communications between Ms. Unger and McLennanRoss LLP in 2007.

As set out previously, these documents have been made available to me and I have reviewed same. The documentsare clearly communications to address the issues which arose from the evidence given by Ms. Unger on her examinations in relation tothe Whittaker Letter. Those communications culminated in McLennan Ross LLP forwarding the McLennan Ross Letter. The Defendantshave not voluntarily waived solicitor-client privilege in relation to these communications. [30] The fact that the Defendants have waived solicitor-client privilege in relation to the communications between Ms. Unger andMr.

Whittaker does not automatically result in a waiver of solicitor-client privilege in respect of the communications between Ms. Ungerand McLennan Ross LLP in relation to the McLennan Ross Letter. [31] Having reviewed the subject documents, I am of the view that neither fairness nor consistency require the Defendants toproduce the documents relating to the communications between Ms. Unger and McLennan Ross LLP in 2007 in relation to the

McLennan Ross Letter. There is nothing which would suggest that the Defendants are attempting to take unfair advantage or present a misleading picture by disclosing only those documents in relation to the communications between Ms. Unger and Mr. Whittaker. Withholding of disclosure of the communications between Ms. Unger and McLennan Ross LLP, in my view, will in no way mislead either Ms. HZ or the court in its ultimate consideration of the issues between the parties. Maintaining solicitor-client privilege with respect to those documents will not be unfair or inconsistent.

The documents are, in fact, documents outlining communications between Ms. Unger and McLennan Ross LLP with a view to clarifying Ms. Unger ’ s evidence in relation to the Whittaker Letter so as to ensure that Ms. HZ was not in any way misled by Ms. Unger ’ s previous evidence. That is, this was an attempt to ensure that evidence that Ms. HZ might rely on and which might be put before the court accurately reflected the dealings between Ms. Unger and Mr. Whittaker in September 2003.

These documents add nothing to the information conveyed in the documents which have been disclosed in relation to the Whittaker Letter. [ 32 ] In these circumstances, there is no reason to erode solicitor-client privilege which, as set out previously herein, is a cornerstone of our legal system. The limited waiver of solicitor-client privilege by the Defendants with respect to all materials related to the Whittaker Letter need not be extended to apply to all materials related to the McLennan Ross Letter. V. Conclusion [ 33 ] The application by Ms.

HZ to compel the Defendants to produce all materials related to the McLennan Ross Letter in respect of which solicitor-client privilege is claimed by the Defendants is dismissed. [ 34 ] The parties may speak to costs in relation to this application at the next Case Management Conference if they wish. Dated at the City of Edmonton, Alberta this 10 th day of January, 2012. K.G. Nielsen J.C.Q.B.A. Appearances: Robert P. Lee Old Strathcona Law Offices for the Plaintiff R. Graham McLennan, Q.C. McLennan Ross LLP for the Defendants