Ms. Pritchard was terminated from employment with Sears Canada and filed a Human Rights complaint. The majority of the complaint was dismissed by the Human Rights Commission. Ms. Pritchard commenced an application for judicial review of the Commission’s refusal to deal with her complaint. During the course of the review Ms. Pritchard’s counsel requested a legal opinion that was provided to the commissioners by the Commission’s in-house counsel. The Commission argued that the opinion was privileged. The Divisional Court held that the opinion was not privileged. The decision of the three judge panel of the Divisional Court was overturned by the Ontario Court of Appeal. The Ontario Court of Appeal concluded that the opinion was privileged.

Administrative law – Human rights complaints – Discrimination – Judicial review application – Solicitor-client privilege – Boards and tribunals – In-house legal opinion

Pritchard v. Ontario (Human Rights Commission), [2003] O.J. No. 215, Ontario Court of Appeal, January 29, 2003, Finlayson, Charron and Armstrong JJ.A.

The issue raised in the appeal was whether a legal opinion prepared for the Ontario Human Rights Commission (the “Commission”) by its in-house counsel is protected by solicitor-client privilege. The facts of the case are as follows. Ms. Pritchard was terminated from her employment with Sears Canada Inc. (“Sears”) and soon thereafter filed a Human Rights complaint which alleged that she had been subjected to gender discrimination and sexual harassment during her employment with Sears. After reviewing the complaint, the Commission decided not to deal with the majority of it. The Commission was of the view that Ms. Pritchard had acted in bad faith because she had signed a release which expressly released claims under the Code. Ms. Pritchard commenced an application for judicial review of the Commission’s refusal to deal with the majority of her complaint. The Divisional Court quashed the decision of the Commission and remitted the matter back to the Commission for a redetermination. The complaint was again considered by the Commission and the Commission again exercised its discretion not to deal with the majority of Ms. Pritchard’s complaint. Ms. Pritchard brought a second application for judicial review before the Divisional Court to strike the Commission’s latest decision not to proceed with the complaint. In the course of that application, counsel for Ms. Pritchard wrote to counsel for the Commission requesting production of various documents, including a “legal opinion that was provided to the Commissioners”. Counsel for the Commission refused the request for documents, including the request for production of the opinion. Counsel for Ms. Pritchard brought a motion to the Divisional Court requesting all information, both oral and written, which was placed before the Commission for its consideration of the complaint. The motion was heard before MacFarland J. who determined that the opinion was not protected by solicitor-client privilege and, in doing so, relied upon the judgment of the New Brunswick Court of Appeal in Melanson v. New Brunswick (Workers’ Compensation Board) (1994), 146 N.B.R. (2d) 294 (C.A.). The decision of the motions judge was upheld by a three-judge panel of the Divisional Court. The matter was then brought before the Ontario Court of Appeal.

In overturning the ruling of the Divisional Court the Ontario Court of Appeal noted that the doctrine of solicitor-client privilege has been one of the cornerstones of the English common law for centuries. Although historically it was regarded as no more than the rule of evidence, it has developed into a much broader concept that protects communications between a client and his or her lawyer in a wide range of circumstances. The court referred to the ruling of Dickson J. of the Supreme Court of Canada in Solosky v. Canada (1979), [1980] 1 S.C.R. 821, where the SCC held that solicitor-client privilege had evolved into a “fundamental civil and legal right”.

In deciding the case, the court held that there was no doubt that the document that had been described was a legal opinion. The court refused to accept the reasoning of the New Brunswick Court of Appeal in Melanson, stating that:

On a policy basis, I find the submission of counsel for the Attorney General in the case at bar persuasive. Counsel submitted that it is desirable for statutory decision-makers to engage in internal debates about which of several possible interpretations of their statutory mandates best serve the public interest, and to be able to weigh those interpretations against other considerations, such as the procedures available to them to regulate or enforce different mandates. Statutory decision-makers, who are often persons with technical expertise in a particular area but not lawyers, need confidential legal advice with respect to the interpretation of relevant legislation and other legal issues in order to facilitate candid discussions. Further, it is my view that procedural fairness can be achieved without the production of such legal opinions. The ultimate question on any judicial review of the Commission’s decision should not be whether the legal opinion it received was correct or not, but whether the decision of the Commission can be upheld. The legal opinion is therefore irrelevant.

In my view, if we were to hold that legal opinions generated in such circumstances are not cloaked with solicitor-client privilege, we would be creating an exception which would clearly go against the weight of the authority to the present time. I believe such a change in the law is best left to the Legislature.

In the result, the appeal was allowed and the Order of the three-judge panel of the Divisional Court was set aside.

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