Nova Scotia (Department of Transportation v. Infrastructure Renewal), 2011 NSCA 27

NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Transportation and Infrastructure Renewal) v. Peach , 2011 NSCA 27 Date: 20110304 Docket: CA 327470 Registry: Halifax Between: Nova Scotia (Department of Transportation and Infrastructure Renewal) Appellant v. Nora T. Peach Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: January 20, 2011 Subject: Solicitor-Client Privilege - Waiver - Freedom of Information and Protection of Property Act , S.N.S. 1993, c. 5, s. 16 ( FOIPOP)

Summary: The respondent inquired as to the legal status of a road. An area manager of the appellant sent her an e-mail which referred to a legal opinion obtained from a government lawyer and summarized its reasons. The respondent’s request for access to the opinion was denied on the basis of the exemption for information subject to solicitor-client privilege contained in s. 16 of FOIPOP. The judge found that the opinion was subject to such privilege and that it had been impliedly waived by a person who had authority to do so. The appellant appeals his order for full disclosure of the legal opinion.

Issues: Whether a civil servant may waive solicitor-client privilege that would otherwise attach to confidential legal advice received from a government lawyer. Whether the area manager’s e-mail waived the privilege. Result: Appeal dismissed. In deciding that solicitor-client privilege could be waived other than by an order-in-council by the Executive Council, the judge made no error that would attract appellate intervention. The framework he suggested to determine when a government actor can do so is consistent with the principle of distributed governmental authority.

The judge made no palpable and overriding errors in finding that the author of the e-mail had authority to waive privilege, he evinced an intention to waive, and the entire opinion letter should be disclosed.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Transportation and Infrastructure Renewal) v. Peach , 2011 NSCA 27 Date: 20110304 Docket: CA 327470 Registry: Halifax Between: Nova Scotia (Department of Transportation and Infrastructure Renewal) Appellant v. Nora T. Peach Respondent Judges: Oland, Fichaud, Bryson, JJ.A.

Appeal Heard: January 20, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Oland, J.A.; Fichaud and Bryson, JJ.A. concurring. Counsel: Sheldon Choo, for the appellant Brian Awad, for the respondent Reasons for judgment : [ 1 ] This appeal arises out of a request by the respondent, Nora Peach, for information regarding the legal status of the Lower Cross Road at the head of St. Mary’s Bay in Digby County. After receiving the response from a government official that referred to a legal opinion, she asked for a copy of the opinion itself.

Her request was denied on the basis of solicitor-client privilege. [ 2 ] The main issue on this appeal concerns waiver of solicitor-client privilege. For the reasons which follow, I am of the view that, in the circumstances of this case, the Chambers judge was correct in finding that privilege had been waived. I would dismiss the appeal. Background [ 3 ] In his decision dated March 9, 2010, and reported as 2010 NSSC 91 , Justice Gerald R.P. Moir set out the facts as follows: [ 4 ] Ms.

Peach wants to know whether the Lower Cross Road is private or public and, if it is public, which level of government has responsibility for maintaining it. The condition of the road was a subject for discussion among municipal councillors in late 2007. Ms. Peach asked the chief administrative officer of the Digby Municipal District about the status of the road. [ 5 ] The chief administrative officer provided Ms. Peach with a copy of an email that had been sent to her by Mr. Stone in October, 2007. Mr.

Stone is the area manager for the Department of Transportation for district operations in the Digby area. [ 6 ] The chief administrative officer had sent an email to Mr. Stone requesting information on the Lower Cross Road. It said: At the meeting on the 5th [of November, 2007] the issue of the condition of the Marsh Road will be addressed. Going through some correspondence, I found a letter (attached) from you to Brian Cullen where you asked for a review to determine if the road was a public highway or not. Do you have the results of that review?

The Lower Cross Road is sometimes called the Marsh Road. [ 7 ] The first paragraph of Mr. Stone's email reads: The information was forwarded to our Acquisition and Disposal

section in Halifax who reviewed aerial photographs from the 1960's and 70's and onward. They sent all documented information to Department of Justice for a Legal Review and ruling. The second paragraph begins "It was Justice's opinion that...".

[4] The judge then explained that, in order that the appellant’s position that the opinion was privileged could be maintained in case of appeal, he would not reproduce the second paragraph of Mr Stone’s email. He continued: [9] I will say this much about the second paragraph. It states the solicitor's opinion on the status of the road and obligations for maintenance. It also summarizes the reasons for the opinion. And, the final sentence reads "Information on this matter was also forwarded to Department of Agriculture to address the concerns of the local marsh association". [10] The final paragraph of Mr.

Stone's email says that the "results of this report was also brought back to the Municipal Council at a subsequent meeting with TPW." The acronym TPW stands for Transportation and Public Works, one of the recent names of the respondent. [5] Ms. Peach applied under the Freedom of Information and Protection of Property Act , S.N.S. 1993, c. 5 (“ FOIPOP ”) for access to the opinion letter.

Section 16 of that legislation provides: 16. The head of a public body may refuse to disclose to an applicant information that is subject to solicitor-client privilege. The Nova Scotia (Department of Transportation and Infrastructure) (“DTIR”) refused disclosure on the basis that the opinion was subject to solicitor-client privilege and, therefore, this exemption attached to that communication in its entirety. After exhausting the process for review and recommendation, the respondent appealed to the Nova Scotia Supreme Court pursuant to s. 42 of FOIPOP . [6] The DTIR argued that Mr. Stone’s

summary of the opinion did not amount to a waiver of privilege in the opinion letter provided by a Department of Justice lawyer. In his decision, the judge set out what must be proved to establish waiver. He was satisfied that privilege in the contents of the letter had been impliedly waived by Mr. Stone who had the authority to do so. [7] The judge’s order issued June 8, 2010. Among other things, it ordered the unsealing of the evidence of the alleged waiver of privilege and its admission as part of the record on her appeal pursuant to FOIPOP .

It stayed that order until the expiration of the time period to appeal to this court and, if an appeal were undertaken, the outcome of that appeal or as otherwise directed by this court. Issues [ 8 ] The DTIR set out several issues on its appeal. They may be combined and restated as follows: 1. May a civil servant waive a privilege that would otherwise attach to confidential legal advice received from a government lawyer? 2. Did Mr. Stone’s email waive the privilege attached to the Department of Justice letter?

Standard of Review [ 9 ] The first issue is a question of law for which the standard of review is correctness. The second issue is a question of mixed fact and law. Unless there is an extractable legal error, it attracts the standard of review of palpable and overriding error. Analysis

Waiver of Privilege by a Civil Servant [10] In order to understand the grounds of appeal and argument, it is helpful to begin with a closer examination of the decisionbelow. The judge first held that the opinion letter was subject to solicitor-client privilege. Then, in determining whether privilege hadbeen waived, he relied upon S. &. K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., (BC SC), [1983] B.C.J.No.1499 (Q.L.)(S.C.).

He quoted Justice McLachlin (as she then was) who wrote at ¶ 6: 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. Thus waiver of privilege as to part of a communication, will be held to be waiver asto the entire communication.

Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege whichwould otherwise attach to that advice is lost… [11] The judge determined that both the elements to prove waiver had been satisfied: [20] There are two things that must be proved for an implied waiver: knowledge of the existence of the privilege and a voluntaryevincing of an intention to waive the privilege. The evidence from the department makes it clear that the parties intended thecommunication to be confidential. . . . [21] Mr.

Stone's seeking of permission from the Department of Justice for release of the letter itself is said to show that he did notintend to release the privilege. I have difficulties with that. Firstly, implied waiver does not turn on the subjective intent of thedisclosing party. The question is about what intention the disclosing party "voluntarily evinces". To produce a

summary of the opinionfor a municipality, and apparently to provide a

summary for use in discussions with a marsh association, and to discuss the opinion withmunicipal councillors evinces an intention to waive confidentiality. [22] Secondly, the privilege was not so much in the letter as it was in the legal advice that happened to be communicated by letter. Mr. Stone was concerned about releasing a letter prepared by a Justice Department solicitor. He does not appear to have been at allconcerned about communicating the solicitor's opinion and reasons. [23] The waiver was not inadvertent. It was deliberate.

This was not a case in which the client disclosed part of a privilegedcommunication not knowing that privilege in the rest may go the same way. Mr. Stone disclosed the heart of the opinion. As I said, itwas deliberate, not inadvertent. [24] I am satisfied that privilege in the contents of the letter was impliedly waived, if Mr. Stone had the authority to do so. [12] In considering whether Mr. Stone had the authority to waive privilege, the judge referred to Nova Scotia (Attorney General) v.Nova Scotia (Police Review Board), [1999] N.S.J. No. 235 (Q.L.)(S.C.).

That decision stated: [24] ...The Attorney General and those working for him as legal advisors have as their client the executive branch of government:A.G. of Canada v. Central Cartage Company et al, [1990] F.C.J. No. 409, 10 F.T.R. 225, affirmed (1990), 35 F.T.R. 1670 (note) (C.A.),Leave to Appeal to S.C.C. refused, [1990] S.C.C.A. No. 319, 126 N.R. 366 (note) (S.C.C.).

Since privilege can only waived by theclient, neither the Board nor the officers complained against nor their employer, the Halifax Regional Police Service, had the authority orthe ability to waive privilege in this case. [13] After noting that this may need to be reconsidered in view of R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, thejudge referred to Canada (Attorney General) v. Central Cartage Company et al, [1987] F.C.J. No. 345 (Q.L.)(T.D.); affirmed [1990]F.C.J. No. 409 (Q.L.)(C.A.); leave to appeal dismissed [1990] S.C.C.A. 319.

He quoted from Justice Reed’s explanation of what ismeant by the executive branch of government:

The Attorney General and those working for him as legal advisors are solicitors for the purposes of advising the executive branch of thegovernment of Canada. Since the Minister of Justice is ex officio the Attorney General . . . one usually finds these persons referred to aslegal advisors who are members of the Department of Justice. ... The client in its broadest sense is the executive branch of thegovernment of Canada. At the apex is the Governor in Council including more particularly the Minister of Industry, Trade andCommerce.

Entities such as the Foreign Investment Review Agency and the Interdepartmental Committee on the International Bridgesare branches of the client. [14] The judge rejected the DTIR’s argument that the authority to receive and release legal advice is concentrated in the ExecutiveCouncil. His reasons included the following: [31] The authority to receive, and to release, legal advice follows the distribution of authority throughout the apparatus ofgovernment.

For several reasons, it cannot be concentrated in the governor in council. [32] Firstly, the cabinet is by no means the ultimate source of all authority in the executive branch, although it may be at the apex ofthe branch. Departmental authority is largely created by statute, by the legislative branch of government. The Public Highways Act,R.S.N.S. 1989, c. 371 is a case in point. It gives the Minister of Transportation "the supervision, management, and control of thehighways": s. 4.

The Department of Justice gives advice to the Department of Transportation and all other government departments: Public Service Act, R.S.N.S. 1989, c. 396, s. 29(1)(c). Thus, the authority to obtain legal advice about highways rests with thedepartment, not cabinet alone. Authority to obtain confidential advice implies authority to waive the confidence. [33] Secondly, there are vast categories of confidential information known to employees of the executive branch from which cabinetis strictly excluded. One example is confidential information in the Public Prosecution Service.

Another is confidential information inthe judicial branch, and in the independent boards and commissions, known to support staff who are provincial employees. Theauthority to release those confidences does not rest with cabinet. Indeed, the confidence works against disclosure to cabinet. Thus, thegovernor in council cannot be the sole authority for release of privilege. [34] Thirdly, it is necessary to good government that the authority to release solicitor and client privilege is distributed throughout theapparatus of government with the division of areas of authority.

The concept of distributed governmental authority was recognized inCarltona Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.) and accepted by the Supreme Court of Canada in R. v. Harrison,[1976] S.C.J. 22 at para. 14. Marshall, J.A. of the Newfoundland Court of Appeal wrote of the gridlock that would result if it were notfor the Carltona principle: R. v. NDT Ventures Ltd., [2001] N.J. 363 (C.A.) at para. 47. [15] To determine whether Mr. Stone had the authority to waive privilege, the judge considered the job description andresponsibilities of an area manager: [37] It is Mr.

Stone's job to communicate with, and deal with, individuals, municipalities, associations, or others about whether, orhow, a highway will be maintained by the provincial government. That must involve deciding whether to tell others about a legalopinion he has acquired on ownership of a highway. [38] In my assessment, Mr. Stone's authority to waive privilege in a Department of Justice opinion is coextensive with his authority toacquire the opinion in the first place.

The judge ordered disclosure of the opinion letter. [16] The parties to this appeal agree that the Chambers judge was correct in concluding that the opinion letter from the Departmentof Justice lawyer to Mr. Stone met all three elements of solicitor-client privilege set out in Solosky v. The Queen, (SCC),[1980] 1 S.C.R. 821 was correct. DTIR does not claim that the test in S. & K. Processors regarding waiver of solicitor-client privilegeidentified by the Chambers judge was the incorrect test. What it claims is that he erred in his application of that test. The appellantargues that: (

a) only the client or possessor of the privilege may waive solicitor-client privilege. The client is the executive branch of the

government of Nova Scotia for which only the Executive Council can speak, and it did not do so. (

b) alternatively, if Mr. Stone had the authority to waive privilege, he did not evince an intention to do so. Without that intention, fairness and consistency do not require that waiver of part of the communication will be held as waiver of the entire communication. [ 17 ] The DTIR relies on two sources for its submission that the client is the executive branch of government.

The first is statutory, and the second is the Police Review Board decision. [ 18 ] The DTIR draws attention to several statutes which, it says, leads inexorably to the conclusion that only an order-in-council can waive solicitor-client privilege. It starts with the Public Service Act , R.S.N.S. 1989, c. 376 which describes the role of the Attorney General: 29

(1) The functions, powers and duties of the Attorney General and Minister of Justice shall be the following: (

a) the Attorney General is the law officer of the Crown, and the official legal adviser of the Lieutenant Governor, and the legal member of the Executive Council; The appellant then points to s. 7(1) (

q) of the

Interpretation Act , R.S.N.S. 1989, c. 235. It defines the Lieutenant-Governor, the entity which the Attorney General advises, for the purposes of that statute and any other enactment, thus: (q) “Lieutenant Governor in Council”, “Governor in Council” or “Government” means the Lieutenant Governor acting by and with the advice of the Executive Council of the Province; Finally, s. 3 of the Executive Council Act , R.S.N.S. 1989, c. 155 identifies the office-holders and ministers of various government departments who may constitute the Executive Council. [ 19 ] DTIR submits that Mr.

Stone, one of its area managers, could not speak for the executive branch of the government of Nova Scotia. Thus, although he received the opinion letter, he was not the client and lacked the authority to waive privilege. The appellant takes the position that solicitor-client privilege in a letter from a Department of Justice lawyer can only be waived by the Executive Council by way of an order-in-council.

I will return to this argument later when considering the Carltona principle of distributed governmental authority. [ 20 ] The second source upon which the DTIR relies upon for its argument that a civil servant cannot waive privilege is the Police Review Board decision. There a person filed a complaint against two officers. He asked the Board to subpoena a Crown attorney whom the officers had consulted before they took the actions which were the subject of his complaint. The Board did so, and the Attorney General sought to quash its decision.

As noted earlier, the Chambers judge quoted from that decision which identified the client as “the executive branch of government.” The appellant cites this single case in support of its assertion that privilege can be waived only by the Executive Council. [ 21 ] The decisions in Police Review Board and R. v. Campbell were released in the same year. In Campbell , after receiving legal advice from a Department of Justice lawyer as to the legality of a planned “reverse sting” operation, R.C.M.P. officers completed such an operation.

It involved their “selling” a large quantity of drugs to the accused who, as purchasers, were charged with and later found guilty of conspiracy to traffic in hashish and possession of hashish for the purpose of trafficking. In their applications for a stay of proceedings on the basis that the “reverse sting” constituted illegal police conduct, the accused sought and were denied access to the legal advice provided to the police upon which the police claimed to have relied in good faith.

Their appeal to the Court of Appeal was dismissed. [ 22 ] The appeal to the Supreme Court of Canada was concerned with the effect of police illegality on the granting of a judicial stay of proceedings, and issues related to the solicitor-client privilege claimed by the R.C.M.P. Binnie, J. in writing for the Court, stated with

regard to solicitor-client privilege: 67 ... In my view, the RCMP waived the right to shelter behind solicitor-client privilege the contents of the advice thus exposed and relied upon. I characterize the RCMP rather than Cpl. Reynolds as the client in these circumstances because even though he was exercising the duties of his public office as a police officer, Cpl. Reynolds was seeking the legal advice in the course of his RCMP employment. The identification of “the client” is a question of fact. ...

This passage indicates that waiver of privilege may be through actions and decisions of government actors other than those at the highest level of the executive branch of government. Moreover, the identity of the client is a question of fact to be decided on a case by case basis. [ 23 ] I agree with the DTIR that the result in Campbell did not turn on who the client was, but rather on the fact that, in response to the stay applications, the R.C.M.P. had emphasized their good faith reliance on the legal opinion.

Without disclosure of its content to resolve the good faith issue, the accused faced an unfair situation. However, the decision considered whether solicitor-client privilege attaches to communications between government employees and government lawyers and determined the identity of the client. In doing so, it did not limit the client who received legal advice from a government lawyer to the executive branch of government.

Thus, Campbell can be said to have superseded the decision in Police Review Board. [ 24 ] In any event, the Police Review Board decision upon which the DTIR relies did not establish that only the Executive Council can waive solicitor-client privilege. Rather, as the Chambers judge observed, it spoke of the client being “the executive branch of government.” The Federal Court in Central Cartage also identified the client as “the executive branch of government.” As explained in that decision, the executive branch has the Governor in Council at its apex and includes ministers, government departments and agencies.

It is not restricted to only the Executive Council. [ 25 ] Accordingly, the analysis proceeds to the Carltona principle of distributed governmental authority, which the judge applied in his reasons, and which a unanimous Supreme Court of Canada endorsed in R. v. Harrison , [1977] 1. S.C.R. 238. Dickson J. (as he then was) explained at p. 245: . . . Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally ( delegatus non potest delegare ) that rule can be displaced by the language, scope or object of a particular administrative scheme.

A power to delegate is often implicit in a scheme empowering a Minister to act. . . . . . . Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown, it may be presumed that the acts will be performed not by the Minister in person, but by responsible officials in his Department: Carltona Ltd. v. Com’rs of Works et al. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally.

It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency. See also R. v.

NDT Ventures Ltd. , 2001 NFCA 16 . [ 26 ] In arguing that a review of the statutes set out earlier in this decision shows that solicitor-client privilege cannot be waived other than by an order-in-council, the DTIR does not challenge the general application of the Carltona principle to the executive branch of the government of this Province. It argues that the judge erred in determining that it applies to waiver of privilege. The appellant puts forward only the Police Review Board decision in support of its submission that it does not apply to waiver.

As already explained, that decision is not determinative of this principle.

On the other hand, the respondent could not present any decision that explicitly found that the principle of distributed governmental authority does apply to waiver of privilege. [ 27 ] In my view Campbell , which shows that waiver can be by those other than persons at the highest level of the executive branch, in combination with the Carltona principle of distributed governmental authority, supports the Chambers judge’s decision that, in certain circumstances, a civil servant may waive privilege of a legal opinion from a government lawyer.

The framework the judge suggested, namely, that a court should look at the authority of a particular government actor and determine whether the advice sought and any

waiver “follow” or is “coextensive” with that person’s subject-matter and/or territorial responsibilities, is consistent with the Carltona principle of distributed governmental authority which applies to Canadian governments. [ 28 ] I can find no error in the judge’s decision which would permit appellate intervention. Whether the e-mail waived the privilege attached to the legal opinion [ 29 ] This second issue has three aspects: (

a) whether Mr. Stone, the author of the e-mail, had authority to waive privilege; (

b) whether he intended to waive privilege; and, (

c) whether fairness requires disclosure of the opinion letter. I will deal with each in turn. [ 30 ] The appellant submits that the judge erred in determining that Mr. Stone had authority to waive privilege. Since this is a finding of fact or the application of the law to the facts, it is reviewed on the standard of palpable and overriding error. [ 31 ] Mr. Stone was a management-level employee. It was not disputed that he was acting within his proper subject-matter and his territorial area.

The DTIR argues that the job description of an area manager requires that person to discuss and/or refer to a supervisor any decisions that have the potential to impact policy and to set precedents. It says that there was no indication that Mr. Stone did so and, accordingly, if he did waive solicitor-client privilege, he did so beyond the responsibilities in his job description. I cannot accept that argument. There was no evidence before the Chambers judge that anything in the opinion letter had the potential to impact policy or to set precedents.

As a result, this submission lacks an evidentiary basis and cannot succeed. [ 32 ] In my view, the judge made no palpable and overriding error in finding that Mr. Stone, an area manager, had authority to waive solicitor-client privilege. [ 33 ] The next question is whether the judge erred in finding that Mr. Stone evinced an intention to waive solicitor-client privilege. The DTIR agrees that, as the judge stated, the “voluntarily evinces an intention” requirement set out in S. & K. Processors attracts an objective test.

It argues that the area manager’s e-mail set out only the conclusion or “bottom line” of the opinion letter, and neither summarized the entire letter nor attached a copy of it. According to the appellant, sharing the conclusions of a legal opinion does not evince an intention to waive privilege. In this regard, it relies upon 3464920 Canada Inc. v. Strother, [2001] B.C.J. No. 1334 (Q.L.) (S.C.) and Mackin v. New Brunswick (Attorney General) , [1996] N.B.J.

No. 557 (Q.L.) (Q.B.) . [ 34 ] In Strother , an offering memorandum referred to two legal opinions regarding the validity and, if successful, possible consequences of a claim against entities affiliated with the general partner of a limited partnership. The applicants applied for production of those letters for inspection and copying.

Their application was dismissed on the basis that the legal opinions were privileged, the privilege had not been waived, and the litigation and letters had to be disclosed in the offering memorandum as they were material facts that had to be revealed pursuant to securities legislation.

In the course of his decision, Clancy J. stated at ¶ 15, that “disclosure of the ‘bottom line’ of the opinion is not a waiver of privilege.” He referred to two British Columbia Supreme Court decisions and an English appellate decision. [ 35 ] In Mackin , the applicant provincial court judge had asked the solicitor general to direct the RCMP to investigate a complaint of contempt of court against the Minister of Justice and Attorney General. After he had sought and received an independent legal opinion from the Deputy Attorney General of Alberta, the Deputy Attorney General of New Brunswick wrote to the judge.

His letter stated that the opinion concluded that the facts of the case “would not support proceedings for contempt”. Parts of the text of the legal opinion were contained in their correspondence. The applicant sought a copy of the opinion letter pursuant to the New Brunswick Right to Information Act. [ 36 ] The issue was whether the applicant was entitled to receive a copy of the full text of the legal opinion which the New Brunswick Deputy Attorney General received from his Alberta counterpart.

Larlee J. (as she then was) held that the opinion was subject to solicitor-client privilege and the fact that the Deputy General revealed the result of the opinion to the applicant did not amount to waiver. At ¶ 15, she continued: The circumstances in this application reveal a potential complaint, a request for an independent legal opinion, the receipt of that opinion, and disclosure of a

summary of the opinion and part of the text of the opinion in correspondence. In my opinion this fact does not amount to waiver of privilege of the whole document.

[ 37 ] The DTIR’s reliance on Strother and Mackin and its argument that disclosure of the “bottom line” does not evince an intention to waive are all founded on its assertion that Mr. Stone’s e-mail disclosed only the “bottom line” of the opinion letter from the Department of Justice. However, the Chambers judge who had examined that opinion letter described Mr.

Stone at ¶ 22 and 23 of his decision as “communicating the solicitor’s opinion and reasons” and as “disclosing the heart of the opinion.” The references to “reasons” and “the heart of the opinion” distinguishes this situation from those described in the case law cited by the appellant. The judge’s characterization of the extent of disclosure is a factual determination that is entitled to a high degree of deference from this court. Accordingly, I do not accept the appellant’s argument. [ 38 ] I would add that the facts show that Mr. Stone intended to disclose.

This was not a situation involving any element of inadvertence. He intended to reveal the existence of a legal opinion, “the heart” of that opinion, and his reliance upon it. [ 39 ] Finally, the DTIR argues that here fairness and consistency do not require disclosure of the entire opinion letter. S. & K. Processors identified situations when these elements call for disclosure: 10 . . . As pointed out in Wigmore on Evidence (McNaughton Rev. (1961), vol. 8, pp. 635-36 . . . double elements are predicated in every waiver - implied intention and the element of fairness and consistency.

In the cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency, it must be entirely waived. . . . [ 40 ] The appellant points out that even when the Supreme Court of Canada found waiver in Campbell , it did not order disclosure of the entire document, but only sufficient disclosure to confirm what the courts were advised regarding the legal opinion. It also referred to Lowry v. Canadian Mountain Holidays Ltd., [1984] B.C.J.

No. 2743 (Q.L.) (S.C.) , quoted in Mackin, to argue that there not having been any attempt to mislead the court or another party, privilege over the entire document need not be abandoned. Finally, it suggests that fairness is only an issue in the context of litigation. [ 41 ] With respect, I can find no palpable and overriding error in the Chamber judge’s decision to order full disclosure of the legal opinion. [ 42 ] I have already discussed his assessment of the extent of the disclosure by way of Mr. Stone’s e-mail. Nor can the context of this matter be forgotten. It is true that it does not involve litigation.

However, the context is that of a government actor responding to valid queries from a citizen. This court in O’Connor v. Nova Scotia (Priorities and Planning Secretariat) , 2001 NSCA 132 stated , in regard to FOIPOP at ¶ 57: . . . Nova Scotia’s lawmakers clearly intended to provide for the disclosure of all government information (subject to certain limited and specific exemptions) in order to facilitate informed public participation in policy formulation, ensure fairness in government decision making, and permit the airing and reconciliation of divergent views. . . .

Solicitor-client privilege is a legitimate exemption, one which is clearly identified in the legislation. In the particular circumstances of this case, however, it was waived and no other exemption applies. [ 43 ] Finally, in considering fairness, I find it significant that the DTIR has not suggested that there will be any adverse effect on the functioning of the government if the decision of the Chambers judge is upheld and full disclosure of the legal advice follows. Disposition [ 44 ] I would dismiss the appeal and order costs of $2,500.00 together with disbursements as agreed or taxed.

To preserve any further rights of appeal, I would continue the stay issued by Moir J. in his Order dated June 8, 2010 until the earlier of (

a) written

notification by the appellant to the respondent and this court that it does not intend to appeal this decision, or (

b) a period of 60 days from the date of our order, or such further time as this court or the Supreme Court of Canada may direct. Oland, J.A. Concurred in: Fichaud, J.A. Bryson, J.A.