2013 FCA 199, 2013 FCA 199

A-497-11 2013 FCA 199 Paul Slansky ( Applicant ) v. Attorney General of Canada, Her Majesty the Queen ( Respondents ) and Canadian Judicial Council ( Intervener ) Indexed as: Canada (Attorney General) v. Slansky Federal Court of Appeal, Evans, Stratas and Mainville JJ.A.—Toronto, April 16; Ottawa, September 9, 2013.

Practice — Privilege — Appeal from Federal Court decision determining that report by Canadian Judicial Council (CJC) subject to both legal advice, public interest privilege — Appellant, lawyer, complaining to CJC about alleged misconduct of Ontario Superior Court of Justice judge — CJC Chairperson dismissing complaint, relying on report by counsel — CJC not disclosing report as part of tribunal record, claiming report legal advice, protected by solicitor-client privilege, subject to public interest privilege — Appellant’s motion to compel disclosure of report granted by Federal Court Prothonotary — However, that decision reversed by Federal Court — Federal Court finding that report subject to legal advice, public interest privilege; declining to sever parts of report — Scope of counsel’s mandate set out in retainer letter — That letter stating that role of counsel to, inter alia, gather information, collect, analyze documentation — CJC indicating counsel’s role of “fact-finder” broader than might be inferred — Whether report subject to solicitor- client privilege, factual components severable — Per Evans J.A.: Letter of engagement not expressly including provision of legal advice — Supreme Court of Canada in Canada (Privacy Commissioner) v.

Blood Tribe Department of Health (Blood Tribe) deciding that lawyer, client relationship established if lawyer engaged to provide services in legal context for which lawyer’s skills, knowledge necessary, even if services not regarded as provision of legal advice in ordinary sense — Terms in retainer letter not conclusive — Analysis of documents by counsel herein requiring extensive knowledge of criminal law, trial process — Inferred from nature of allegations that counsel’s role involving legal, factual analyses — Counsel engaged in capacity as lawyer — Report therefore subject to legal advice privilege — Not permissible to sever findings of fact made in investigative report covered by solicitor-client privilege when forming basis of, inextricably linked to, legal advice provided — Appeal dismissed — Per Mainville J.A. (concurring): Report subject to public interest privilege — CJC decision not to disclose report reasonable — Damage to public interest non-existent or minimal — Disclosure of report would negate undertakings of confidentiality provided to third parties — Trial Judge not obligated to justify conduct of trial to appellant or Federal Court — CJC amply discharging its duty of disclosure by informing appellant of disposition of complaint — Federal Court committing no error — Per Stratas J.A. (dissenting): No solicitor-client, public interest privileges here — Retainer letter must predominate in assessing claim of privilege — Counsel not performing legal analysis — Otherwise running counter to letter’s explicit instructions — Word “analyzed” in letter meaning identifying, gathering, summarizing bits of information from documents — Lawyer cannot make secret informational document by unilaterally inserting analyses, recommendations, advice that formed no part of retainer — “Advice” having to be broadly construed in assessing whether lawyer retained only to gather information or to gather information as part of larger exercise of providing legal advice — Here, letter showing that CJC leaving for itself task of analysis — Supreme Court comment “otherwise acting as a lawyer” in Blood Tribe may have been allusion to litigation privilege — Not open to Court to reify words “otherwise acting as a lawyer” to level of general principle, apply that principle to impose secrecy over information gathering report when no legal advice sought — Privilege, if present, waived by CJC when report given to third party — CJC not permitted to disclose some information supporting its decision, withhold rest — Report should be included in record — Report not protected by public interest privilege — CJC failing to demonstrate interest in confidentiality — Report hidden from reviewing court if public interest claim upheld — Immunizing part of CJC’s decision offending principle that holders of public power accountable for exercise of power — Allowing reviewing court to view report strengthening judicial independence.

Judges and Courts — Appellant, lawyer, complaining to Canadian Judicial Council (CJC) about alleged serious misconduct of Ontario Superior Court of Justice judge during murder trial — CJC Chairperson dismissing complaint, closing file — In making decision, Chairperson relying on report from counsel — Appellant seeking judicial review of Chairperson’s decision — CJC not disclosing report as part of tribunal record, claiming report legal advice, protected by solicitor-client privilege, subject to public interest privilege — Appellant’s motion to compel disclosure of report granted by Federal Court Prothonotary — However, that decision reversed by Federal Court — Federal Court finding that report subject to legal advice, public interest privilege; declining to sever parts of report — Appellant alleging, inter alia, that CJC’s investigation of complaint inadequate,

interpretation of Judge’s conduct wrong in law, CJC exceeding jurisdiction by passing “erroneous and flawed judgment” on appellant’s conduct at trial as excuse for Judge’s misconduct — Whether report subject to solicitor-client privilege, factual components severable —Counsel’s role involving legal, factual analyses — Counsel engaged in capacity as lawyer — Report therefore subject to legal advice privilege — Not permissible to sever findings of fact made in investigative report covered by solicitor-client privilege when forming basis of, inextricably linked to, legal advice provided — Appeal dismissed, Stratas J.A. dissenting.

This was an appeal from a decision of the Federal Court setting aside the Prothonotary’s decision and determining that a report by the Canadian Judicial Council (CJC) was subject to both legal advice and public interest privilege. The appellant, a lawyer, complained to the CJC about the alleged serious misconduct of an Ontario Superior Court of Justice judge during a long and difficult first degree murder trial before a jury, in which the appellant was representing the accused. The CJC Chairperson dismissed the complaint and closed the file without referring it to an Inquiry Committee of the CJC.

In making this decision, the Chairperson relied on a report from Professor Martin Friedland (Friedland Report). The appellant brought an application for judicial review of the Chairperson’s decision. Although the Friedland Report had been taken into account by the Chairperson, the CJC refused to disclose it as part of the tribunal record pursuant to rule 317 of the Federal Courts Rules (Rules), claiming that it constituted legal advice and was protected by solicitor-client privilege, and subject to public interest privilege. A Federal Court Prothonotary granted the

appellant’s motion to compel disclosure of the report and rejected the CJC’s privilege arguments. The Federal Court allowed the CJC’s motion brought under rule 51 of the Rules and reversed the Prothonotary’s decision. The Federal Court found that the Friedland Report was subject to both legal advice and public interest privilege. It declined to sever parts of the report, and exercised its discretion not to convert the application into an action.

The scope of Professor Friedland’s mandate was set out in a letter stating, inter alia , that “[t]he role of Counsel in conducting further inquiries is, essentially, to gather further information .… Documentation may be collected and analyzed.

It is not the role of Counsel conducting further inquiries to weigh the merits of a complaint or to make any recommendation as to the determination that a Chairperson or a Panel should make.” The Executive Director and General Counsel of the CJC indicated that counsel’s role of “fact- finder” was broader than might be inferred and expected that the report would constitute legal advice. The appellant alleged, inter alia , that the CJC’s investigation of the complaint was inadequate, the

interpretation of the Judge’s conduct was wrong in law, and the CJC had exceeded its jurisdiction by passing “erroneous and flawed judgment” on the appellant’s conduct at trial as an excuse for the Judge’s misconduct. The main issues were whether the Friedland Report was subject to solicitor-client privilege and whether its factual components were severable. Held (Stratas J.A. dissenting), the appeal should be dismissed.

Per Evans J.A.: The central question in this case was whether the Chairperson engaged Professor Friedland in his capacity as a lawyer to provide legal advice to assist him in deciding whether to dismiss the complaint or refer it to a hearing. Professor Friedland’s letter of engagement did not expressly include the provision of legal advice to the Chairperson. Indeed, he was specifically instructed not to advise the Chairperson on the decision he should make regarding the complaint. However, the Supreme Court in Canada (Privacy Commissioner) v.

Blood Tribe Department of Health somewhat modified the law as formulated in Gower v. Tolko Manitoba Inc. and College of Physicians of B.C. v. British Columbia (Information and Privacy Commissioner) in that a lawyer and client relationship will be established if the lawyer has been engaged to provide services in a legal context for which a lawyer’s skills and knowledge are necessary, even if the services might not be regarded as the provision of legal advice in the ordinary sense.

While the retainer is important evidence of whether a solicitor-client relationship has been established, the terms of the retainer are not necessarily conclusive and must be construed in light of all the relevant circumstances. Inquiring into the appellant’s allegations called for an analysis of documents and tapes that required a lawyer who had an extensive knowledge of criminal law and criminal trial process. The documents that had to be analysed to enable Professor Friedland to conduct further inquiries into the appellant’s allegations called for a lawyer’s expertise.

A lawyer’s knowledge was required to make the distinction between judicial errors that are appropriately remedied by an appeal and misconduct that might warrant removal from the Bench. Thus, despite the engagement letter’s description of counsel’s role as that of a gatherer and finder of the facts, it can be inferred from the nature of the allegations into which the letter stated that Professor Friedland was to conduct his inquiries that his role involved legal and factual analyses that required the skills and knowledge of a lawyer.

Accordingly, when assisting the Chairperson in deciding how to proceed with the complaint, Professor Friedland was engaged in his capacity as a lawyer. The report of his inquiries was therefore subject to legal advice privilege. Finally, it is not permissible to sever findings of fact made in an investigative report covered by solicitor-client privilege when they form the basis of, and are inextricably linked to, the legal advice provided. The disclosure of documents ordered by the Federal Court substantively satisfied any possible duty to sever.

To go further would erode the confidentiality on which the lawyer-client relationship fundamentally rests. Per Mainville J.A. (concurring): The report of Professor Friedland was subject to public interest privilege on the grounds raised by the CJC. The CJC’s decision that the Friedland Report should not be disclosed on the ground of public interest privilege was reasonable in the circumstances of this case. Any resulting damage to the public interest in the due administration of justice was non-existent or minimal at best.

On the other hand, the disclosure of the report would negate, without justification, the undertakings of confidentiality provided by the CJC to the third parties who participated in the process, undertakings which were made at the behest of the appellant himself. Though the trial Judge may well have provided justifications to the CJC concerning his conduct of the trial or his decisions, this does not mean that these justifications must be disclosed to the appellant or to the Federal Court.

Under the principle of judicial independence, he need not (and should not) justify his conduct of the trial, or any of his judicial decisions, to either the appellant or the Federal Court. The trial Judge may well wish to explain to the CJC his management of the trial and the reasons for his trial decisions, but that does not entail that he must do so publicly. The limited duty of disclosure owed under the CJC’s Complaints Procedures is simply to inform the complainant of the disposition of the complaint. This was amply discharged in this case. The CJC owed no further duty of disclosure to the appellant.

Since, in this case, the CJC justifiably raised a public interest privilege over the Friedland Report, and since the disclosure of this report was not necessary in order for the appellant to pursue his judicial review application, the Federal Court did not commit an error in concluding that the motion seeking its disclosure should have been dismissed by the Prothonotary. Per Stratas J.A. (dissenting): The prerequisites for the solicitor-client privilege and the public interest privilege were not present here. In assessing a claim of privilege, the retainer letter, if there is one, must predominate.

The retainer letter defines, with binding contractual force, the nature of the relationship, the purpose of the lawyer’s retainer, whether any advice is to be given, and the nature of that advice. In the present case, while the retainer letter mentioned that “[d]ocumentation may be collected and analyzed”, to suggest that Professor Friedland was performing legal analysis is a leap too far.

It would run counter to the retainer letter’s explicit instruction that Professor Friedland was “not … to weigh the merits of a complaint” or make any “recommendation as to the determination a Chairperson or a Panel should make.” Professor Friedland could not even engage in adjudicative fact-finding, as opposed to information gathering. Viewed in light of the tasks the retainer letter assigned to Professor Friedland and the restrictions on what he could do, the word “analyzed” only meant identifying, gathering, and summarizing bits of information from the documents and interviews.

A lawyer cannot take a purely informational document and suddenly make it wholly secret by unilaterally inserting analyses, recommendations and advice that formed no part of the retainer. The mere fact that a lawyer is involved does not make a report generated by the lawyer privileged. In the context of investigations, a line exists between a lawyer retained only to gather information and a lawyer who is retained to gather information as part of the larger exercise of providing legal advice. In assessing where a case falls, “advice” must be

broadly construed. It includes “advice as to what should prudently and sensibly be done in the relevant legal context”, in other words,practical advice mindful of the legalities or advice on a course of action informed by the legalities. But Professor Friedland was asked togather information, not to give any sort of advice. The retainer letter showed that the CJC decomposed the overall task into factual andlegal parts.

It assigned to Professor Friedland a subset of the factual part—information gathering—leaving for itself the task of reviewingthe facts gathered, applying the relevant law, and reaching a conclusion on the merits of the appellant’s complaint. Based on the SupremeCourt’s comment in Canada (Privacy Commissioner) v.

Blood Tribe Department of Health that solicitor-client privilege extends to “allinteractions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as alawyer”, the CJC sought to extend the scope of solicitor-client privilege far beyond the decided cases. It sought to shift the analyticalfocus from whether legal advice has been sought to whether the skills of a lawyer were required for the assigned task. In adding thecomment, “otherwise acting as a lawyer”, the Supreme Court might have been alluding, infelicitously, to litigation privilege.

It is notopen to the Court to pluck the words “otherwise acting as a lawyer” from the introductory part of the Supreme Court’s reasoning inBlood Tribe, reify them to the level of a general principle, and then, contrary to authority, apply that principle to impose secrecy over aninformation gathering report that formed the basis of a public administrative decision. Protecting factual information from disclosurewhere no legal advice of any kind has been sought—indeed where, as here, the instructions were not to give advice of any kind—doesnot further the purposes of privilege.

This is especially so where the disclosure of factual information reveals nothing about legalities orlegal views held by the author. If the privilege existed, the CJC waived it by voluntarily giving the Friedland Report to a third party, i.e.the Deputy Attorney General of Ontario. The CJC should not be permitted to disclose bits of information in the Friedland Report thatsupport its decision, but withhold the rest of it. In the interests of fairness and consistency, the Council should be taken to have waivedwhatever privilege might have existed over all of the Friedland Report.

As to severance, even if Professor Friedland’s task included providing legal advice, and even if the CJC did not waive any privilegewhich existed, the Friedland Report should be included in the record of the Court, with any privileged portions severed. The Friedland Report is not protected by public interest privilege. In order to succeed in its claim of public interest privilege, the CJChad to demonstrate an interest in confidentiality, well established in the evidence, one that justifies withholding a document that areviewing court would normally get to see.

The CJC failed to do this and its claim for public interest privilege must fail. Finally, if the CJC’s public interest claim was upheld, the reviewing court would not see the Friedland Report. The reviewing courtwould thus not be able to assess the grounds of review asserted by the appellant and to some extent the CJC’s decision would be shieldedfrom review. Immunizing part of the CJC’s decision offends the principle that all holders of public power should be accountable for theirexercises of power.

In this case, immunization weakens the accountability and transparency of the CJC and the judicial disciplinarysystem it administers. This principle finds voice in many areas of the law. With less accountability and transparency, public confidencein the judiciary would fall, ultimately threatening judicial independence. Allowing the reviewing court to consider the appellant’sgrounds of challenge with the benefit of the Friedland Report does not undercut judicial independence at all. If anything, it strengthens it. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c. A-1.

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38, 39. Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 49 to 51.12. Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.4. Federal Courts Rules, SOR/98-106, rr. 51, 53, 151, 152, 317, 318. Judges Act, R.S.C., 1985, c. J-1, ss. 59(1), 60, 61, 62, 63, 64, 65, 71. Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 360 (2012). Judicial Discipline (Prescribed Procedures) Regulations 2006, SI 2006/676, s. 40(4). Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 39.03. CASES CITED APPLIED: Canada (Privacy Commissioner) v.

Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574; Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821, (1979), 105 D.L.R. (3d) 745. CONSIDERED: Payne v. Ontario Human Rights Commission, , 192 D.L.R. (4th) 315 (Ont. C.A.); R. v. McClure, 2001 SCC 14, [2001]1 S.C.R. 445; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809; General Accident Assurance Co. v.Chrusz, , 45 O.R. (3d) 321 (C.A.); College of Physicians of B.C. v. British Columbia (Information and PrivacyCommissioner), 2002 BCCA 665, [2003] 2 W.W.R. 279; Balabel v. Air India, [1988] Ch. 317 (C.A.); Blood Tribe v.

Canada (AttorneyGeneral), 2010 ABCA 112 , 487 A.R. 71; Gower v. Tolko Manitoba Inc., 2001 MBCA 11 , 196 D.L.R. (4th) 716;Wilson v. Favelle, , 26 C.P.C. (3d) 273 (B.C.S.C.); Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC11, [2002] 1 S.C.R. 249; MacKeigan v. Hickman, (SCC), [1989] 2 S.C.R. 796, (1989), 61 D.L.R. (4th) 688; Morier et al.v. Rivard, (SCC), [1985] 2 S.C.R. 716, (1985), 23 D.L.R. (4th) 1; Sirros v. Moore, [1975] 1 Q.B. 118; R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, (1991), 5 C.R.R. (2d) 31; Descôteaux et al. v. Mierzwinski, (SCC), [1982] 1S.C.R. 860, (1982), 141 D.L.R. (3d) 590; Thompson v.

Canada (National Revenue), 2013 FCA 197, 366 D.L.R. (4th) 169; Guelph (City)

v. Super Blue Box Recycling Corp., , 2 C.P.C. (6th) 276 (Ont. S.C.J.); Hartwig v. Commission of Inquiry into mattersrelating to the death of Neil Stonechild, 2007 SKCA 74 , 284 D.L.R. (4th) 268; Carey v. Ontario, (SCC), [1986]2 S.C.R. 637, (1986), 58 O.R. (2d) 352; Sankey v. Whitlam (1978), 21 A.L.R. 505 (H.C.); Burmah Oil Co. v. Bank of England, [1979] 3All E.R. 700 (H.L.); M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157, (1997), 143 D.L.R. (4th) 1; Thorson v. AttorneyGeneral of Canada et al., (SCC), [1975] 1 S.C.R. 138, (1974), 43 D.L.R. (3d) 1; Baker v. Carr, 369 U.S. 186 (1962);Tzaban v.

Minister of Religious Affairs (1986), 40(4) P.D. 141; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332. REFERRED TO: Canada v. Aqua-Gem Investments Ltd., (FCA), [1993] 2 F.C. 425, [1993] 1 C.T.C. 186 (C.A.); Z.I. Pompey Industriev. ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450; Three Rivers District Council & Ors v. Bank of England, [2004] UKHL 48(BAILII), [2004] 3 W.L.R. 1274; Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56, (1986), 30 D.L.R. (4th) 481;Valente v.

The Queen et al., (SCC), [1985] 2 S.C.R. 673, (1985), 24 D.L.R. (4th) 161; Reference re Remuneration ofJudges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Courtof Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, (1997), 156 Nfld. & P.E.I.R. 1; Garnett v. Ferrand (1827), 6 B. &C. 611; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3; Taylor v. Canada (Attorney General), 2003 FCA 55, [2003] 3 F.C. 3; GuardianNews & Media Limited v.

Information Commissioner, 10 June 2009, Information Tribunal Appeal Number: EA/2008/0084; Taylor v.Canada (Attorney General), 2001 FCT 1247, [2002] 3 F.C. 91; Douglas v. Canada (Attorney General), 2013 FC 451, [2014] 4 F.C.R.494; Jacko v. McLellan, , 306 D.L.R. (4th) 126 (Ont. S.C.J.); R. v. Campbell, (SCC), [1999] 1S.C.R. 565, (1999), 171 D.L.R. (4th) 193; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; United Brotherhood of Carpenters andJoiners of America, Local 579 v.

Bradco Construction Ltd., (SCC), [1993] 2 S.C.R. 316, (1993), 106 Nfld. & P.E.I.R.140; Ontario Securities Commission and Greymac Credit Corp., Re, , 41 O.R. (2d) 328 (Div. Ct.); R. v. Joubert, , 7 B.C.A.C. 31 (C.A.); Smith v. Jones, (SCC), [1999] 1 S.C.R. 455, (1999), 169 D.L.R. (4th) 385; R. v.Gruenke, (SCC), [1991] 3 S.C.R. 263, [1991] 6 W.W.R. 673; Bone v. Person, , 185 D.L.R. (4th) 335(Man. C.A.); Ranger v. Penterman, 2011 ONCA 412, 342 D.L.R. (4th) 690; Canada (Information Commissioner) v. Canada (PublicSafety and Emergency Preparedness), 2013 FCA 104, 360 D.L.R. (4th) 176; Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235;H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Southern Railway of British Columbia Ltd. v. Canada (DeputyMinister of National Revenue), , [1991] 1 C.T.C. 432 (B.C.S.C.); PSC Industrial Services Canada Inc. v. Thunder Bay(City), (Ont. S.C.J.); B.C. Securities Commission v. BDS and CWM, 2002 BCSC 664; 1225145 Ontario Inc. v. Kelly,, 27 C.P.C. (6th) 227 (Ont. S.C.J.); Access Information Agency Inc. v. Canada (Attorney General), 2007 FCA 224;1185740 Ontario Ltd. v.

Canada (Minister of National Revenue), , 247 N.R. 287 (F.C.A.); Sierra Club of Canada v.Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, (1998), 157 D.L.R. (4th) 385; M.N.R. v. Derakhshani, 2009 FCA 190; Canada (NationalRevenue) v. RBC Life Insurance Company, 2013 FCA 50; Health Services and Support-Facilities Subsector Bargaining Association v.British Columbia, 2002 BCSC 1509, 8 B.C.L.R. (4th) 281; Conway v. Rimmer, [1968] A.C. 910 (H.L.); Glasgow Corporation v. CentralLand Board, 1956 S.C. (H.L.) 1; Rogers v.

Home Secretary, [1973] A.C. 388 (H.L.); Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190; Woodward Estate (Executors of) v. Minister of Finance, (SCC), [1973] S.C.R. 120, (1972), 27 D.L.R. (3d)608; U.E.S., Local 298 v. Bibeault, (SCC), [1988] 2 S.C.R. 1048, (1988), 35 Admin. L.R. 153; Crevier v.

AttorneyGeneral of Quebec et al., (SCC), [1981] 2 S.C.R. 220, (1981), 127 D.L.R. (3d) 1; Canada (Attorney General) v.Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Canadian Council of Churches v.Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, (1992), 88 D.L.R. (4th) 193; Finlayv. Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607, (1986), 33 D.L.R. (4th) 321; Hy and Zel’s Inc. v. Ontario(Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), (SCC), [1993] 3 S.C.R. 675, (1993), 107D.L.R. (4th) 634; Harris v.

Canada, (FCA), [2000] 4 F.C. 37, (2000), 187 D.L.R. (4th) 419 (C.A.); Ellis-Don Ltd. v.Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221. AUTHORS CITED Barak, Aharon. The Judge in a Democracy. Princeton, N.J.: Princeton University Press, 2006. Binnie, Ian. “Judicial Independence in Canada” in World Conference on Constitutional Justice, 2nd Congress, Rio de Janeiro, January16‒18, 2011, online: <http://www.venice.coe.int/wccj/Rio/Papers/CAN_Binnie_E.pdf>.

Brody, David C. “The Use of Judicial Performance Evaluation to Enhance Judicial Accountability, Judicial Independence and PublicTrust” (2008), 86 Denv. U. L. Rev. 115. Bryant, Alan W. et al. The Law of Evidence in Canada, 3rd ed. Markham, Ont.: LexisNexis Canada, 2009. Campbell, Enid and H. P. Lee. The Australian Judiciary. Cambridge: Cambridge University Press, 2001. Canadian Judicial Council. Annual Report 2002-03.

Appendix E “Procedures for Dealing with Complaints made to the Canadian JudicialCouncil about Federally Appointed Judges”, online: <http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_annualreport_2002-2003_en.pdf>. Canadian Judicial Council. Annual Report 2002-03. Appendix F “Canadian Judicial Council Policy with Respect to Counsel Retained inJudicial Conduct Matters”, online: <http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_annualreport_2002-2003_en.pdf>. Canadian Judicial Council. Ethical Principles for Judges, 2004, online: <http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf>.

Canadian Judicial Council. Procedures for Dealing with Complaints made to the Canadian Judicial Council about Federally AppointedJudges: “Complaints Procedures”, October 14, 2010, online: <http://www.cjc-ccm.gc.ca/cmslib/general/CJC-CCM-Procedures-2010.pdf>.

Ciparick, Carmen Beauchamp and Bradley T. King. “Judicial Independence: Is It Impaired or Bolstered by Judicial Accountability?” (2010), 84 St. John’s L. Rev. 1. Dodek, Adam M. “Reconceiving Solicitor-Client Privilege” (2010), 35 Queen’s L.J. 493. Friedland, Martin L. A Place Apart: Judicial Independence and Accountability in Canada . Ottawa: Canadian Judicial Council, 1995. Geyh, Charles G. “Rescuing Judicial Accountability from the Realm of Political Rhetoric” (2006), 56 Case W. Res. L. Rev. 911. Hubbard, Robert W. et al. The Law of Privilege in Canada , loose-leaf. Aurora, Ont.: Canada Law Book, 2006.

Keane, Adriane et al. The Modern Law of Evidence , 8th ed. Oxford: Oxford University Press, 2010. McLachlin, Beverley. “Courts, Transparency and Public Confidence ‒ To the Better Administration of Justice” (2003), 8 Deakin L. Rev. 1. Olowofoyeku, Abimbola A. “The Crumbling Citadel: Absolute Judicial Immunity De-rationalised” (1990), 10 Legal Studies 271. Paciocco, David M. and Lee Stuesser. The Law of Evidence , 6th ed. Toronto: Irwin Law, 2011. Phipson, Sidney Lovell. Phipson on Evidence , 17th ed. by Hodge C. Malek, Q.C. London: Sweet & Maxwell, 2010.

Strassfeld, Robert N. “‘Atrocious Judges’ and ‘Odious’ Courts Revisited” (2006), 56 Case W. Res. L. Rev. 899. Tapper, Colin. Cross and Tapper on Evidence , 11th ed. New York: Oxford University Press, 2007. United Nations. Office of the High Commissioner for Human Rights. Basic Principles on the Independence of the Judiciary, online: <http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx>. Wigmore, John Henry. Evidence in Trials at Common Law , McNaughton Revision, Vol. 8. Boston: Little Brown & Co., 1961.

APPEAL from a decision of the Federal Court ( 2011 FC 1467 , [2013] 3 F.C.R. 558) setting aside the Prothonotary’s decision ( 2011 FC 476 , 388 F.T.R. 217) and determining that a report by the Canadian Judicial Council was subject to both legal advice and public interest privilege. Appeal dismissed, Stratas J.A. dissenting. APPEARANCES Rocco Galati for appellant. James Gorham for respondents. Paul J. J. Cavalluzzo and Adrienne Telford for intervener. SOLICITORS OF RECORD Rocco Galati Law Firm Professional Corporation , Toronto, for appellant. Deputy Attorney General of Canada for respondents.

Cavalluzzo Shilton McIntyre & Cornish LLP , Toronto, for intervener. The following are the reasons for judgment rendered in English by E vans J.A.: A. INTRODUCTION [ 1 ] The Canadian Judicial Council (CJC) has a statutory responsibility to investigate complaints of misconduct made against federally appointed judges. This may result in a recommendation to the Minister of Justice that a judge has become unable to perform judicial duties by virtue of misconduct, and should be removed from office.

The CJC’s disciplinary function is delicate: it engages issues of judicial independence and accountability, and of confidentiality and transparency. Consideration of these issues must be driven by the public interest in the administration of justice in both its broadest and more specific senses. [ 2 ] This case raises an important issue about the CJC’s investigative process.

If a complainant applies for judicial review of a decision by the Chairperson of the Judicial Conduct Committee (Chairperson) to dismiss a complaint against a judge, must the CJC disclose a confidential report prepared by outside counsel to assist the Chairperson in considering the complaint? [ 3 ] In August 2004, Paul Slansky, a Toronto criminal lawyer, complained to the CJC about the conduct of Justice Robert Thompson (Judge), an Ontario Superior Court of Justice judge.

He alleged that the Judge had been guilty of serious misconduct during a long and difficult first degree murder trial before a jury, in which Mr. Slansky was representing the accused. [ 4 ] The Chairperson, Chief Justice Scott of Manitoba, dismissed the complaint and closed the file without referring it to an Inquiry Committee (hearing panel) of the CJC. In making this decision, the Chairperson relied on a report from counsel, Professor Martin Friedland, whom he had retained to make further inquiries into Mr. Slansky’s allegations. [ 5 ] Mr.

Slansky brought an application for judicial review of the Chairperson’s decision to dismiss his complaint and not to refer it to

a hearing panel. Although Professor Friedland’s report had been taken into account by the Chairperson in making this decision, the CJC refused to disclose it as part of the tribunal record requested by Mr. Slansky pursuant to rule 317 of the Federal Courts Rules , SOR/98- 106 (Rules). The CJC said that the report constituted legal advice and was thus protected by solicitor-client privilege, and was also subject to public interest privilege. [ 6 ] Mr. Slansky brought a motion to compel disclosure of the report as part of the CJC’s record.

In the alternative, he argued that the Court should exercise its discretion under subsection 18.4(2) of the Federal Courts Act , R.S.C., 1985, c. F-7, to order the conversion of the application into an action, so that he would have the benefits of trial process, including discovery and viva voce evidence. [ 7 ] Subject to the redaction of pages in the report that she considered to be legal advice, Prothonotary Milczynski granted the motion and rejected the CJC’s privilege arguments. Having ordered disclosure of most of the report, she did not have to, and did not, determine the conversion issue.

Her decision is reported at 2011 FC 476 , 388 F.T.R. 217. [ 8 ] The CJC brought a motion under rule 51 of the Rules to set aside the Prothonotary’s decision. Justice de Montigny of the Federal Court allowed the motion and reversed the Prothonotary’s decision. He found that Professor Friedland’s report was subject to both legal advice and public interest privilege. He declined to sever parts of the report, but ordered the CJC to disclose the 6 000 pages of trial transcript examined by Professor Friedland, as well as other publicly available materials that he had considered in preparing his report.

Justice de Montigny exercised his discretion not to convert the application into an action. His decision is reported at 2011 FC 1467 , [2013] 3 F.C.R. 558. [ 9 ] Mr. Slansky appeals to this Court from that decision. For the reasons that follow, I have concluded that the Friedland Report is covered by legal advice privilege. In addition, I agree with my colleague Justice Mainville that the report is also subject to public interest privilege. I am not persuaded that Justice de Montigny committed any error in refusing Mr.

Slansky’s request to convert the application into an action. [ 10 ] Accordingly, I would dismiss the appeal, but vary the Federal Court’s order by requiring the CJC to disclose pages 31–32 of the report as part of its tribunal record because they are not relevant to Professor Friedland’s investigation of Mr. Slansky’s complaint against the Judge. B. FACTUAL BACKGROUND [ 11 ] In a 16-page complaint to the CJC, dated August 12, 2004 (appeal book, pages 39–54), Mr. Galati, who was representing Mr.

Slansky, alleged serious misconduct by the Judge during the trial: discourteous, abusive and impatient behaviour towards Mr. Slansky; bias, refusal to hear arguments and unduly interfering with Mr. Slansky’s cross-examination of witnesses; improper motives; abuse of office; and knowingly acting contrary to law. [ 12 ] In turn, the Judge, through the Assistant Deputy Attorney General of Ontario, complained to the Law Society of Upper Canada about Mr. Slansky’s conduct at the trial.

This complaint was dismissed without being referred to a hearing, on the ground that the conduct in question did not warrant discipline. [ 13 ] The pre-trial motions and the murder trial before Justice Thompson lasted from September 2002 to July 2004, including 130 days for the trial itself, which was much longer than anyone anticipated. It involved dozens of motions and required the Judge to make numerous difficult procedural and evidentiary rulings.

A complicating factor throughout was that it was a re-trial following the Ontario Court of Appeal’s reversal of the accused’s conviction at the first trial, a fact that the Judge had to keep from the jury. The fact that Mr. Slansky was convinced of his client’s innocence, while the Judge seems to have been equally convinced that the accused was guilty, only made the management of the trial more challenging. [ 14 ] After receiving Mr.

Slansky’s complaint against the Judge, the Chairperson engaged Professor Friedland of the University of Toronto’s Faculty of Law to conduct further inquiries into it and to report back to him.

Professor Friedland is a member of the Ontario Bar, a distinguished criminal law scholar, and the author of an influential report prepared for the CJC, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian Judicial Council, 1995). [ 15 ] The scope of Professor Friedland’s mandate was set out in a letter, dated May 3, 2005, in which Norman Sabourin, the Executive Director and General Counsel of the CJC, confirmed Professor Friedland’s appointment: appeal book, pages 56–58.

The letter defined the scope of his role by quoting from the “Canadian Judicial Council Policy with Respect to Counsel Retained in Judicial Conduct Matters”, dated September 2002 [Canadian Judicial Council, Annual Report 2002-03 , Appendix F, at page 51] (Policy). The role of Counsel in conducting further inquiries is, essentially, to gather further information. Persons familiar with the circumstances surrounding the complaint, including the judge who is the subject of the complaint, will be interviewed. Documentation may be collected and analyzed .

It is not the role of Counsel conducting further inquiries to weigh the merits of a complaint or to make any recommendation as to the determination that a Chairperson or a Panel should make. … This role is sometimes referred to as that of a “fact-finder”. This description is accurate if it is limited to the gathering or clarification of facts. It would not be accurate if it were intended to encompass adjudicative fact-finding in the sense of making determinations based on the relative credibility of witnesses or the persuasiveness of one fact over another.

The role of Counsel conducting further inquiries is simply to attempt to clarify the allegations against the judge and gather evidence which, if established, would support or refute those allegations. The Counsel must obtain the judge’s response to these allegations and evidence, and present all of this information to the Chairperson or Panel. The role of Counsel undertaking further inquiries is to focus on the allegations made.

However, if any additional, credible and serious allegations of inappropriate conduct or incapacity on the part of the judge come to the Counsel’s attention, Counsel is not precluded from inquiry into those matters as well. [Emphasis added.] [ 16 ] In an affidavit affirmed on February 9, 2007 (appeal book, pages 293–294) for the purpose of Mr. Slansky’s motion before the

Prothonotary, Mr. Sabourin put something of a gloss on the terms of the CJC’s Policy reproduced in Professor Friedland’s letter of engagement. He indicated that counsel’s role of “fact-finder” was broader than might be inferred from reading the Policy. [ 17 ] Thus, Mr. Sabourin said that he was responsible for directing the scope of counsel’s inquiries and “ the nature of the advice they provide ” (emphasis added). Further, he said, counsel is expected “to provide a lawyer’s analysis and recommendations ” (emphasis added) in respect of the allegations of the complaint. Mr.

Sabourin concluded that his expectation, as well as that of the Chairperson, was that counsel’s report would constitute legal advice because … we retain legal counsel and seek a solicitor’s investigation of the facts and a solicitor’s analysis and recommendations concerning those facts in the context of the legal mandate and obligations of the Council when considering a complaint .

Indeed, this is why the Complaints Procedures provide that it must be a lawyer that conducts such inquiries; otherwise, this work could be ably conducted by an investigator without legal credentials. [Emphasis added.] [ 18 ] That Professor Friedland shared this understanding of his mandate is suggested by the fact that he stamped his report “CONFIDENTIAL and subject to SOLICITOR-CLIENT PRIVILEGE”. [ 19 ] In a 10-page letter, dated March 9, 2006, Mr. Sabourin advised Mr.

Slansky of the bases of the Chairperson’s decision that his complaint did not warrant further consideration: appeal book, pages 311–320. [ 20 ] According to Mr. Sabourin, it was the Chairperson’s opinion that when viewed in the context of this difficult trial, and taking into account Mr. Slansky’s own conduct, the Judge’s management of the trial, while far from perfect, did not constitute judicial misconduct. The Chairperson had concluded that, although not all the Judge’s rulings were necessarily correct, they did not evidence bias or a knowing disregard of the law. [ 21 ] Mr.

Sabourin also described Professor Friedland’s methodology in preparing his report (appeal book, page 312), which included: the examination of 6 000 pages of trial transcript, minutes of the proceedings prepared by the court registrars during the trial, and 78 of the rulings made by the Judge before and during the trial; and interviews conducted by Professor Friedland with the Judge, Mr. Slansky, named Crown counsel, the Regional Director of Crown Attorneys, and the Regional Senior Justice. Professor Friedland also listened to tapes of the parts of the trial that had become particularly intense. [ 22 ] Mr.

Sabourin noted that the Chairperson had not adopted Mr. Galati’s suggestion that “the local bar” be interviewed, because the interviews conducted by Professor Friedland provided sufficient information to enable him to assess the complaint. Moreover, the Judge’s predilections in matters of criminal justice, and sentencing in particular, were evident from interviews with the Judge and from some of his reported decisions. [ 23 ] In his application for judicial review of the dismissal of the complaint, Mr. Slansky alleged, among other things, that the CJC’s investigation of the complaint was inadequate, the

interpretation of the Judge’s conduct was wrong in law, and the CJC had exceeded its jurisdiction by passing “erroneous and flawed judgment” on Mr. Slansky’s conduct at trial as an excuse for the Judge’s misconduct. C. LEGISLATIVE FRAMEWORK [ 24 ] The Judges Act , R.S.C., 1985, c. J-1, is the primary legislation relevant to this appeal.

Subsection 59(1) establishes the CJC, which is composed of the Chief Justice of Canada, who is the chair of the CJC, and the federally appointed chief justices, associate chief justices, and other specified senior judges, from across Canada. [ 25 ] Subsection 60(1) defines the objects of the CJC. Subsection 60(2) set out the CJC’s means of furthering these objects; paragraph (

c) is directly relevant to this appeal. Objects of Council 60.

(1) The objects of the Council are to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts. Powers of Council

(2) In furtherance of its objects, the Council may … (

c) make the inquiries and the investigation of complaints or allegations described in

section 63; and [ 26 ]

Section 62 authorizes the CJC to engage the services of others as it deems necessary for performing its functions, including the services of counsel to assist in the conduct of inquiries or investigations. Employment of counsel and assistants 62. The Council may engage the services of such persons as it deems necessary for carrying out its objects and duties, and also the services of counsel to aid and assist the Council in the conduct of any inquiry or investigation described in

section 63 . [Emphasis added.] [ 27 ] Subsection 63(2) provides that the CJC may investigate any complaint or allegation made in respect of a federally appointed judge. Subsection 63(5) authorizes the CJC to prevent the publication of information arising from an investigation under this section, and subsection 63(6) permits an investigation to be held in public or private, unless the Minister of Justice requires it to be held in public. 63. … Prohibition of information relating to inquiry, etc.

(5) The Council may prohibit the publication of any information or documents placed before it in connection with, or arising out of, an inquiry or investigation under this

section when it is of the opinion that the publication is not in the public interest. Inquiries may be public or private

(6) An inquiry or investigation under this

section may be held in public or in private, unless the Minister requires that it be held in public.

[ 28 ] After the completion of an investigation, the CJC must report its conclusions to the Minister and may recommend that the judge be dismissed from office if it concludes that the judge is incapacitated or disabled from the due execution of the office of judge by, among other things, misconduct. Report of Council 65.

(1) After an inquiry or investigation under

section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister. Recommendation to Minister

(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of … (

b) having been guilty of misconduct, … the Council, in its report to the Minister under subsection (1), may recommend that the judge be removed from office. [ 29 ] The statutory provisions establishing the disciplinary powers and process of the CJC are in addition to the existing powers to remove a judge from office. Powers, rights or duties not affected 71.

Nothing in, or done or omitted to be done under the authority of, any of sections 63 to 70 affects any power, right or duty of the House of Commons, the Senate or the Governor in Council in relation to the removal from office of a judge or any other person in relation to whom an inquiry may be conducted under any of those sections. [ 30 ] The CJC’s Procedures for Dealing with Complaints made to the Canadian Judicial Council about Federally Appointed Judges (Ottawa: Canadian Judicial Council, approved 2002) (Complaints Procedures) [see the Canadian Judicial Council’s Annual Report 2002- 03 , Appendix E, at pages 45–49] puts some flesh on the skeletal statutory provisions about the process by which the CJC investigates complaints against judges.

The Complaints Procedures were amended in 2010. However, since the 2002 version is the one relevant to this appeal, its terms are reproduced in these reasons. [ 31 ]

Section 3.2 of the Complaints Procedures describes the initial step after the CJC has received a complaint. 3.2 The Executive Director shall refer a file to either the Chairperson or a Vice-Chairperson of the Judicial Conduct Committee in accordance with the directions of the Chairperson of the Committee.

The Chairperson or a Vice-Chairperson shall not deal with a file involving a judge of their court. [ 32 ] If the Chairperson does not summarily close the file on the ground that the complaint is, among other things, manifestly without basis or outside the jurisdiction of the CJC (paragraph 3.5( a )), the Chairperson may ask the complainant for more information or solicit comments from the judge against whom the complaint has been made (paragraphs 3.5(

b) and ( c )).

Section 5.1 sets out the options available to the Chairperson after considering the responses to these requests. Paragraph 5.1(

c) is directly relevant to this appeal: 5.1 The Chairperson shall review the response from the judge and the judge’s chief justice, as well as any other relevant material received in response to the complaint, and may (

a) close the file where: (

i) the Chairperson concludes that the complaint is without merit or does not warrant further consideration, or (ii) the judge acknowledges that his or her conduct was inappropriate and the Chairperson is of the view that no further measures need to be taken in relation to the complaint; or (

b) hold the file in abeyance pending pursuit of remedial measures pursuant to

section 5.3; or (

c) ask Counsel to make further inquiries and prepare a report, if the Chairperson is of the view that such a report would assist in considering the complaint ; or (

d) refer the file to a Panel. [Emphasis added.] [ 33 ]

Section 1 of the Complaints Procedures defines “Counsel” as follows: “Counsel” means a lawyer who is not an employee of the Council. [ 34 ]

Section 7 contains two provisions that apply when the Chairperson asks counsel to make further inquiries under paragraph 5.1( c ): 7.1 If the Chairperson asks Counsel to make further inquiries under paragraph 5.1( c ), the Executive Director shall so inform the judge and his or her chief justice.

7.2 Counsel shall provide to the judge sufficient information about the allegations and the material evidence to permit the judge to makea full response and any such response shall be included in the Counsel’s report. [35] If, after reviewing counsel’s report, the Chairperson decides to close the file on any of the grounds set out in

section 5.1, theExecutive Director must provide the judge with a copy of the letter informing the complainant that the file is closed (section 8.2). [36] The CJC’s Policy [at page 51] contains further detail on the role of counsel when engaged by the Chairperson under paragraph5.1(

c) of the Complaints Procedure “to make further inquiries and prepare a report” to assist the Chairperson in considering a complaint.The provisions of that Policy relevant to this appeal are quoted in paragraph 15 of these reasons. D. DECISION OF THE PROTHONOTARY [37] Prothonotary Milczynski granted Mr. Slansky’s motion to compel disclosure of the Friedland Report pursuant to rule 318 of theRules as part of the administrative record of the CJC’s dismissal of his complaint, which he was challenging in an application for judicialreview.

She held that the relationship between the CJC and Professor Friedland was not that of solicitor and client because its statedpurpose was investigative or “fact-gathering”, not the provision of legal advice. [38] Consequently, she held that the report was not exempted from disclosure by legal advice privilege in so far as it was limited to itspurpose, that is, fact-gathering. However, she found that Professor Friedland had also gone on to provide legal analysis relevant to howthe Chairperson should proceed with the complaint, including the allegation of bias.

She ordered counsel representing the CJC on themotion to identify the portions of the report that constituted legal advice in order to assist the Court in determining how much should beredacted before disclosure. [39] The Prothonotary also rejected the CJC’s claim for public interest privilege, on the ground that the non-disclosure of the reportwould both damage public confidence in the integrity of the complaints process and impede Mr. Slansky’s right to have his applicationfor judicial review conducted in a meaningful manner.

She noted that there was no precedent for extending public interest privilege tothe facts gathered in an investigation, and concluded that there was no evidence that disclosure would hamper the CJC’s investigativeprocess. E. DECISION OF THE FEDERAL COURT JUDGE [40] Justice de Montigny granted the CJC’s motion under rule 51 to set aside the decision of the Prothonotary. On the claim for legaladvice privilege, the Judge found that, in light of all the circumstances, a relationship of solicitor and client existed between ProfessorFriedland and the CJC.

In this regard, it was a mistake to focus on a single document, such as the CJC’s Policy or the letter ofengagement. He concluded (at paragraph 52) that the task of sorting out the facts relevant to the decision that the Chairperson had tomake was “fundamentally a legal exercise”, and that the factual components of the report could not be severed. However, he ordered thedisclosure of publicly available materials consulted by Professor Friedland, including 6 000 pages of trial transcript. [41] The Judge rejected the protection of judicial independence as the basis for public interest privilege.

However, he found that thepublic interest in safeguarding the integrity of the CJC’s informal investigative process warranted the non-disclosure of the report,especially since, in this case, Mr. Sabourin’s letter to Mr. Slansky gave sufficient information about the bases of the Chairperson’sdecision to inform him of the case he had to meet. [42] Finally, he held that

summary applications for judicial review are only converted into actions in exceptional circumstances,which did not exist here. Mr. Sabourin had provided extensive information to Mr. Slansky about the bases of the Chairperson’s decision.Moreover, even if it were possible for Mr. Slansky to identify all those interviewed by Professor Friedland, it was unclear whether theycould provide relevant evidence if summoned as witnesses at a trial. F.

ISSUES AND ANALYSIS [43] The principal issue to be considered in these reasons is whether the Friedland Report is covered by the legal advice branch ofsolicitor-client privilege. Before addressing this question, I shall deal briefly with three other issues. (

i) standard of review [44] Counsel for Mr. Slansky argued that the Judge made an error of law by failing to apply a deferential standard of review to theProthonotary’s decision on a question (the disclosure of the Friedland Report) that no one contended was vital to the final issue in theapplication for judicial review: see Canada v. Aqua-Gem Investments Ltd., (FCA), [1993] 2 F.C. 425 (C.A.); Z.I.Pompey Industrie v.

ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450, at paragraph18. [45] For this reason, and because it was not suggested that the Prothonotary had misapprehended the facts, Justice de Montigny held(at paragraph 32) that her decision could be reversed only on … a clear showing that it is wrong, in the sense that it rests upon a wrong principle or a misunderstanding of the law. [46] Counsel submitted that although Justice de Montigny had correctly formulated the applicable legal test for reviewing decisions ofprothonotaries, he had in fact simply substituted his opinion for that of the Prothonotary on questions that were not pure questions of lawor principle.

I do not accept this argument. [47] Justice de Montigny disagreed with the Prothonotary’s finding on the legal advice privilege issue that a solicitor-clientrelationship had not been established. He held that she had not considered all the circumstances relevant to this issue, including the natureof the task entrusted to Professor Friedland. Instead, she had focused too narrowly on the letter of engagement and the provisions of theCJC’s Policy on the role of counsel. Justice de Montigny also held that it was an error of law to sever the factual portions of a privilegedcommunication.

In my view, these are questions of law or principle on which a prothonotary is not entitled to deference.

[48] As for the issue of public interest privilege, I view the error of principle that warranted the Judge’s intervention as theProthonotary’s apparent insistence that the CJC had to adduce evidence that those interviewed by Professor Friedland would have beenless forthcoming if they had known that his report would be disclosed in the course of judicial proceedings.

The Prothonotary alsoattached virtually no weight to the additional resources that would be required if the CJC were forced to resort regularly to formalhearings before a panel, because the efficacy of its informal investigative process had been undermined by an inability to maintain theconfidentiality of counsel’s report. [49] In my view, the Judge did not err by failing to apply a deferential standard of review to the Prothonotary’s decision. (ii) waiver [50] A suggestion arose during argument before this Court that the CJC had waived any privilege that it might have with respect to theFriedland Report.

The suggestion was based on the following statement in the Prothonotary’s reasons (at paragraph 31): The Court was advised at the hearing of the motion that the CJC subsequently provided a copy of the Friedland Report to the LawSociety of Upper Canada to be included in its investigation of the complaint filed by Justice Thompson against Mr. Slansky, and that afurther copy was sent to the Deputy Attorney General at the request of Justice Thompson for this purpose. Nonetheless, the Prothonotary concluded that any disclosure to the Law Society for the purpose of its investigation of the complaintagainst Mr.

Slansky did not constitute a waiver of privilege because the CJC and the Law Society had a common interest in the duedisposition of complaints against those engaged in the administration of justice. She did not mention the further copy allegedly forwardedto the Deputy Attorney General. [51] In addition, Mr. Slansky stated in a supplementary affidavit, sworn on June 8, 2009 (appeal book, page 341) that during aregulatory meeting of the Law Society in connection with the complaint against him, a lawyer had told him that Professor Friedland hadsaid that Mr.

Slansky’s jury address in the murder trial was one of the best he had ever read. Because Professor Friedland had also saidthis to him during the interview, Mr. Slansky inferred that the CJC must have made the report available to the Law Society for use in itsdisciplinary proceedings against Mr. Slansky.

However, this inference is not warranted because it is equally plausible that the lawyer hadlearned of this compliment during a conversation with Professor Friedland. [52] These are the only indications in the record that the CJC might have disclosed the Friedland Report to the Law Society and to theDeputy Attorney General of Ontario. Mr. Slansky appears not to have pursued the issue of waiver before Justice de Montigny, nor didcounsel raise it in his memorandum of fact and law in the appeal to this Court.

When it arose at the hearing in this Court as a result ofquestions from the Bench, counsel for the CJC consulted Mr. Sabourin, and reported that Mr. Sabourin had told him that he had noknowledge of any disclosure of the report. Counsel for Mr.

Slansky did not comment. [53] In my view, there is insufficient evidence in the record to establish that the CJC had waived its privilege by providing copies ofthe report to either the Law Society or the Deputy Attorney General of Ontario. (iii) conversion [54] The conversion of the application into an action only arises as an issue in this case if the Friedland Report is privileged. Since theProthonotary found that it was not, she did not have to decide this question. [55] Having held the report to be privileged, Justice de Montigny was required to consider Mr.

Slansky’s request to convert hisapplication for judicial review into an action under

section 18.4 of the Federal Courts Act. Because his refusal to convert wasdiscretionary in nature, it will only be set aside on appeal if it was either unreasonable in light of the facts or wrong in law. [56] In his careful consideration of this issue (at paragraphs 86–94), Justice de Montigny correctly stated that a court should grant arequest for a conversion “only in exceptional circumstances” (at paragraph 87). He inferred this from the text of subsection 18.4(1)which provides that applications “shall be heard and determined without delay and in a

summary way.” The Federal Court’s discretion toconvert an application into an action under subsection 18.4(2) is very much an exception to the general rule in subsection (1), as affirmedby the case law cited by Justice de Montigny (at paragraphs 88–89). [57] He noted (at paragraph 90) that the only basis on which Mr. Slansky relied to support the request for a conversion was that thefacts relevant to his challenge to the CJC’s dismissal of his complaint could not be established by affidavit evidence, which could notmake good the “various evidentiary gaps, inconsistencies, and factual issues”.

However, Justice de Montigny held that any “gaps” wereadequately filled by the detailed explanation of the Chairperson’s decision that Mr. Sabourin had provided to Mr. Slansky. Moreover, hesaid, if gaps existed, it was by no means clear that they could be filled by viva voce evidence, especially since Mr.

Slansky would nothave access to the privileged report. [58] Justice de Montigny concluded (at paragraph 93) that the key question was whether affidavit evidence would be inadequate forthe fair disposition of the allegations made in the application for judicial review, and not whether trial evidence might be superior.Applying this test, he was not persuaded that the circumstances of this case justified converting the application into an action. [59] This is the only issue on which counsel for the Attorney General took a position.

Like the CJC, he supported Justice deMontigny’s decision that conversion was not appropriate. [60] In my view, Justice de Montigny’s analysis contains no error warranting this Court’s interference with his exercise of discretion.In substance, much of counsel’s argument in this Court was designed to show that trial evidence was likely to be better than theaffidavits. But that is not the test. [61] Counsel for Mr. Slansky relied heavily on Payne v. Ontario Human Rights Commission, , 192 D.L.R. (4th) 315(Ont. C.A.). However, in my view, this case is not of much assistance to Mr.

Slansky since it concerned a different issue, to which a

different test applied: whether the applicant was entitled to serve a notice of examination on the Commission’s registrar under Rule 39.03of the Ontario Rules of Civil Procedure [R.R.O. 1990, Reg. 194] in order to obtain all the documents in the Commission’s possessionrelevant to the case. [62] In any event, if the Friedland Report is privileged—and the issue of conversion only arises if it is—it could not be discovered in atrial. Further, Mr.

Slansky has been informed of the publicly available documents on which Professor Friedland relied and has been givena full explanation of the bases of the Chairperson’s decision. [63] In these circumstances, I would not interfere with Justice de Montigny’s exercise of discretion to refuse to convert the applicationinto an action. ISSUE 1: Is the Friedland Report subject to solicitor-client privilege? (

i) introduction [64] In considering the CJC’s claim for solicitor-client privilege for the Friedland Report, I have kept in mind the following fourfeatures of the privilege and of legal advice privilege in particular. [65] First, solicitor-client privilege has two branches: litigation and legal advice privilege. The only branch claimed for the FriedlandReport is legal advice privilege. This attaches to communications between solicitor and client for the purpose of obtaining or giving legaladvice.

It is the privilege of the client, not the lawyer. [66] The rationale for legal advice privilege is that individuals who require the assistance of a lawyer must be able to disclose fullyand frankly to the lawyer all the information that the lawyer requires in order to provide sound advice in a legal context: see, forexample, Canada (Privacy Commissioner) v.

Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574 (Blood Tribe), atparagraph 9. [67] Without this guarantee of confidentiality, individuals may be unwilling to reveal all to their lawyer and, as a result, their ability tosuccessfully assert their legal rights, or to discharge their legal duties, may be prejudiced, and the integrity of the administration of justiceundermined: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paragraph 2. Thus, the rule of law is the ultimate justification of theprivilege: Three Rivers District Council & Ors v.

Bank of England, 2004 UKHL 48 (BAILII), [2004] 3 W.L.R. 1274, at paragraph 34. [68] Second, the privilege extends not only to communications from client to lawyer, but also from lawyer to client, including alawyer’s advice on legal issues on which she or he had been consulted by a public official or body in connection with the discharge ofstatutory responsibilities. Thus, for example, in Pritchard v.

Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809(Pritchard), privilege was successfully claimed for a legal opinion provided by in-house counsel, on which the Commission had relied indeciding not to exercise its statutory power to refer a complaint of discrimination to adjudication. [69] It follows from the rationale for legal advice privilege that it does not protect the confidentiality of communications by thirdparties to a lawyer, at least when the third party was not acting on behalf of the client: General Accident Assurance Co. v.

Chrusz, , 45 O.R. (3d) 321 (C.A.) (Chrusz), at paragraphs 120‒122 (per Doherty J.A.); College of Physicians of B.C. v. BritishColumbia (Information and Privacy Commissioner), 2002 BCCA 665, [2003] 2 W.W.R. 279 (College of Physicians of B.C.), atparagraphs 45‒58. [70] Hence, any discussion in the report of statements made in confidence to Professor Friedland by those he interviewed is notcovered by legal advice privilege.

Whether public interest privilege applies is, however, another matter. [71] Third, when legal advice privilege for a communication has been established on the facts of a given case, and none of the limitedexceptions apply (on which, see Adam M. Dodek, “Reconceiving Solicitor-Client Privilege” (2010), 35 Queen’s L.J. 493, at pages 514–516), the privilege is “as close to absolute as possible” and, once established, “does not involve a balancing of interests on a case-by-casebasis”: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 [cited above], at paragraph 35.

In this latter respect, legal privilege differs frompublic interest privilege. I would also add that, if a communication is found to be privileged, it is not for the Court to opine on thewisdom of the decision to make the claim. [72] The search for truth in litigation should not be taken to be the one “true” principle, to which claims for the confidentiality of acommunication on the basis of solicitor-client privilege are subsidiary and “a necessary evil to be tolerated only in the clearest ofsituations”: Chrusz, at paragraph 67.

Rules 317 and 318 are not a statutory abrogation of solicitor-client privilege: Pritchard, atparagraphs 32–36. [73] Fourth, legal privilege is based on the class to which the communication belongs, not on the content of that communication.Thus, once it is established that a communication falls within the definition of the scope of the privilege, the court does not consider thecontent of the document in question in order to determine whether its disclosure is likely to prejudice the free flow of information thatlegal privilege is designed to protect. (ii) the elements of legal advice privilege [74] The four elements of the test for determining whether a communication qualifies for legal advice privilege are well established:(1) it must have been between a client and solicitor; (2) it must be one in which legal advice is sought or offered; (3) it must have beenintended to be confidential; and (4) it must not have had the purpose of furthering unlawful conduct: see Solosky v.

The Queen, (SCC), [1980] 1 S.C.R. 821, at page 837; Pritchard, at paragraph 15. [75] Counsel for Mr. Slansky did not dispute that the report was intended to be confidential. Professor Friedland stamped it as such.As already noted, I am not persuaded that the CJC subsequently waived its confidentiality. The fourth element of the Solosky test is notrelevant to this appeal.

[76] The central question in this case is whether the Chairperson engaged Professor Friedland in his capacity as a lawyer to providelegal advice to assist him in deciding whether to dismiss the complaint or refer it to a hearing. [77] Legal advice has been held to include not only telling clients the law, but also giving advice “as to what should prudently andsensibly be done in the relevant legal context”: Balabel v. Air India, [1988] Ch. 317 ( C.A.), at page 330, quoted with approval in BloodTribe v.

Canada (Attorney General), 2010 ABCA 112 , 487 A.R. 71, at paragraph 26. [78] Further, as Steel J.A. observed in Gower v.

Tolko Manitoba Inc., 2001 MBCA 11 , 196 D.L.R. (4th) 716 (Gower), atparagraph 22, this question is “closely related to whether the solicitor was acting in a professional legal capacity as a solicitor.” [79] In Blood Tribe, Justice Binnie somewhat broadened the scope of legal advice privilege by stating (at paragraph 10) that solicitor-client privilege is … applicable 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. [Emphasis added.] Thus, a solicitor-client relationship is established for privilege purposes if the lawyer has been asked either to give legal advice orotherwise to act as a lawyer, that is, to perform services related to a legal issue pertaining to the client for which the professional skillsand knowledge of a lawyer are required. (iii) lawyers and investigations: the jurisprudence [80] Gower is the leading authority on legal advice privilege respecting a report by a lawyer who has been instructed by a client toinvestigate a complaint of improper conduct.

The issue in Gower was whether the plaintiff in a wrongful dismissal action was entitled tothe production of a report written by a lawyer at the request of the defendant, the plaintiff’s employer. [81] The lawyer had been retained to conduct an investigation into a complaint against the plaintiff of sexual harassment “as counselon behalf of the Employer for the purpose of providing a fact finding report and giving legal advice based on the findings in the report”(at paragraph 5). The Court held (at paragraph 12) that the entire report, including the

section on findings of fact, was subject to legaladvice privilege, on the ground that “the entire report forms an investigative report leading to legal advice”. [82] As to what constitutes “legal advice” for the purpose of the privilege, the Court stated (at paragraph 19): … legal advice is not confined to merely telling the client the state of the law. It includes advice as to what should be done in the relevantlegal context. It must, as a necessity, include ascertaining or investigating the facts upon which the advice will be rendered.

Courts haveconsistently recognized that investigation may be an important part of a lawyer’s legal services to a client so long as they are connectedto the provision of those legal services. [83] The Court held (at paragraph 37) that if the lawyer had been asked only to investigate and to find the facts, that would not haveconstituted the giving of legal advice, and the report would not have been privileged. However, the Court was satisfied (at paragraph 38)that the lawyer was also asked to provide recommendations and to advise on their legal implications.

Since the fact finding wasinextricably linked to the provision of that legal service, the portion of the report dealing with the lawyer’s findings of fact was alsocovered by the privilege. [84] College of Physicians of B.C. arose from a complaint of misconduct by a physician.

One issue was whether experts’ reportsobtained by the College’s in-house lawyer in the course of her investigation of the complaint were covered by legal advice privilege. [85] Adopting the approach in Gower, the Court in College of Physicians of B.C. stated that legal advice privilege may attach to acommunication by a lawyer to a committee of the regulatory body made in the context of providing legal advice on the performance ofits statutory duty to decide whether a complaint should be subject to further inquiry.

The Court found (at paragraph 42) that the lawyer’sinstructions were … to obtain the facts necessary to render legal advice to the [College’s Sexual Conduct Committee] concerning its legal obligationsarising out of the complaint. As such, she was engaged in giving legal advice to her client. However, on the basis of Chrusz, the Court held that the experts’ reports were not covered by solicitor-client privilege because they werecommunications to the lawyer by third parties who were not acting on behalf of the College, the lawyer’s client. [86] In an earlier case, Wilson v.

Favelle, , 26 C.P.C. (3d) 273 (B.C.S.C.) (Wilson), the Master emphasized theimportance of the scope of the role assigned to a lawyer in determining whether legal advice privilege applies. An outside lawyer hadbeen retained by the British Columbia Ministry of Health to investigate a complaint of misconduct by the plaintiff, an employee of theMinistry.

The plaintiff sought production of the lawyer’s report, which the Province opposed on the ground that it was subject tosolicitor-client privilege. [87] The contract between the lawyer and the Ministry stated that the lawyer was to investigate the allegations by interviewing thecomplainant. The lawyer was then to prepare a report for the Deputy Minister documenting the facts, and advise on any breaches of thestandards of conduct applicable to public service employees and on any damage to either the Ministry’s ability to perform its functions orthe reputation of the Crown or its employees.

The terms of the contract were subsequently characterized in an affidavit as including theprovision of legal advice to the Deputy Minister. [88] The Master granted the motion for production on the ground that the terms of the lawyer’s contract did not establish a solicitor-client relationship. He gave no weight to the affidavit’s after-the-fact recharacterization of the instructions. [89] Unlike the situation in Gower and College of Physicians of B.C., Professor Friedland’s letter of engagement did not expressly

include the provision of legal advice to the Chairperson. Indeed, he was specifically instructed not to advise the Chairperson on the decision he should make regarding the complaint.

However, Blood Tribe has somewhat modified the law as formulated in these cases in that a lawyer and client relationship will be established if the lawyer had been engaged to provide services in a legal context for which a lawyer’s skills and knowledge are necessary, even if the services might not be regarded as the provision of legal advice in the ordinary sense, because, for example, the lawyer neither informs the client about their legal rights or duties, nor expressly advises on action to be taken by the client given the client’s legal position. [ 90 ] Whether Professor Friedland was retained to give legal advice or otherwise to act as a lawyer depends on the answers to two questions.

First, what was the scope of the mandate given to him by the CJC? Second, is that mandate properly characterized as “providing legal advice or otherwise acting as a lawyer”? (iv) Professor Friedland’s mandate [ 91 ] Counsel for Mr. Slansky says that the terms of the CJC’s Policy form the basis of Professor Friedland’s letter of engagement.

They establish that, as counsel, his role was limited to investigating the complaint by gathering facts and clarifying the allegations, so as to assist the Chairperson in deciding how to proceed with the complaint. [ 92 ] Further, he argues, it is clear from Gower ; College of Physicians of B.C. ; and Wilson that the reports of lawyers who are instructed to investigate the facts of a complaint are not subject to legal advice privilege, unless their mandate also includes the provision of legal advice. [ 93 ] Counsel submits that Professor Friedland’s role was not to provide legal advice or other legal services, but rather was analogous to that of human rights investigators who investigate complaints of discrimination and report to the Commission on whether an adjudicative hearing is warranted.

He says that these investigators have not generally been lawyers, and their reports are normally disclosed as a matter of fairness to complainants. [ 94 ] There might be much to be said for this view if the nature of Professor Friedland’s mandate was to be determined only by reference to the CJC’s Policy incorporated into the letter of engagement, without any consideration of context.

However, while the retainer is important evidence of whether a solicitor-client relationship has been established, the terms of the retainer are not necessarily conclusive ( Gower , at paragraph 40 ), and must be construed in light of all the relevant circumstances. [ 95 ] The description of Professor Friedland’s mandate in the letter of engagement was based on the CJC’s Policy respecting the role of counsel.

The parts of the Policy quoted in the letter state that the role of counsel in conducting further inquiries into a complaint is to “gather further information”, “attempt to clarify the allegations” and “gather evidence which, if established, would support or refute those allegations”. In addition, the Policy provides that “[d]ocumentation may be collected and analyzed ” (emphasis added) by counsel. [ 96 ] The Policy provides no further positive explanation of what “fact-gathering” entails, but it does say what it does not include.

First, while sometimes described as a fact-finder, counsel is not an adjudicative fact-finder who must make factual determinations based on a weighing of the evidence. Second, it is not counsel’s role to recommend the decision that the Chairperson should make on the complaint.

The Policy does not mention the provision of legal analysis or advice, although, depending on the nature of the particular complaint, this could be implicit in counsel’s mandate, including the instruction to provide an analysis of documentation. [ 97 ] Professor Friedland’s letter of engagement did not expressly relate the terms of the Policy to the nature of the inquiries he was to make in respect of Mr. Slansky’s complaint.

However, in my view this can be inferred from the complaint itself, which included allegations that the Judge’s conduct of the trial included highly improper, non-judicial behaviour, bias, and procedural and evidentiary rulings that the Judge knew to be wrong. [ 98 ] Inquiring into these allegations in order to assist the Chairperson in making a decision on whether to refer the complaint to a hearing panel called for an analysis of documents and tapes that required the skills and knowledge of a lawyer.

And not just any lawyer, but one like Professor Friedland who had an extensive knowledge of criminal law and criminal trial process. [ 99 ] Thus, Professor Friedland examined 6 000 pages of trial transcript, and listened to tape recordings of parts of the trial, in order to clarify the allegation of misconduct by the Judge in the manner in which he managed a difficult trial.

Sifting through this material to understand the dynamics of the trial, identifying exchanges involving the Judge that might constitute judicial misconduct and not just give rise to an appeal, and providing an analysis of these findings, all called for a lawyer’s knowledge and skills.

Similarly, Professor Friedland’s analysis of the Judge’s rulings in this case, as well as of his other reported decisions, for indications of bias, bad faith, or improper motives, was also uniquely within a lawyer’s competence. [ 100 ] These activities are certainly included in the analysis of documentation that the CJC’s Policy states is part of the role of counsel. The documents that had to be analysed to enable Profess

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