The Law Society of Saskatchewan’s application for an Order authorizing an Inspector of the Law Society to enter the office of M Law Firm to obtain privileged file materials relating to a client (“MH”) was dismissed where the Court found that the circumstances of the case did not meet the test of “absolute necessity”

28. November 2006 0

Administrative law – Barristers and solicitors – Solicitor-client privilege – Law Societies – Judicial review – Compliance with legislation – Disclosure – Absolute Necessity

Law Society of Saskatchewan v. E.M., [2006] S.J. No. 608, Saskatchewan Court of Queen’s Bench, August 10, 2006, Hunter J.

The Law Society received a complaint from a person who was adverse in interest to MH in litigation in which M Law Firm represented MH. In the litigation, a Court Order was made in favour of the complainant against MH and M Law Firm. The matter was appealed and the Court of Appeal affirmed the Order against MH, but did not uphold the Order made against M Law Firm. In order to deal with the complaint, the Law Society applied for an Order pursuant to s.63(3) of The Legal Profession Act, 1990, S.S. 1990, c. L-10.1 (the “Act”) to authorize an Inspector for the Law Society to enter into the offices of M Law Firm to take possession of various documents relating to the files of MH. No issue was taken by the parties with the Law Society’s position that it had reasonable and probable grounds to request the records. The only issue was whether the Court should exercise its discretion in favour of the Law Society and grant the discretionary Order requested even though the documents and records were subject to solicitor-client privilege.

The Court noted that the case law established that the solicitor-client privilege must not be interfered with lightly, citing the decision of the Supreme Court of Canada in Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31. The test to be applied is whether it is “absolutely necessary in order to achieve the end sought by the enabling legislation” to interfere with solicitor-client privilege. Absolute necessity is as restrictive a test as may be formulated short of an absolute prohibition in every case.

MH submitted that the effect of the complaint, investigation and disciplinary hearings granted too much discretion in the manner in which it was conducted to provide any satisfactory guarantee that the solicitor-client privilege would be protected. Requirements in the Act to inform the complainant of the Notice of Hearing and notice of any penalties meant that the Law Society had no discretion to keep significant information from the complainant, which may lead to an infringement of his solicitor-client privilege. As well, the Court noted that pursuant to the Saskatchewan Rules, the Law Society Hearing Committee had discretion as to whether the matter would be heard in private. Further, although the individuals conducting the investigation were deemed covered by solicitor-client privilege under the Rules, there was no provision mandating that individuals who thereafter became privy to the information be bound by solicitor-client privilege.

The Court found that the Saskatchewan Act and Rules in their current form allowed too much discretion to adequately address the protection of the solicitor-client privilege. The Court noted that if the complainant was a client of the law firm, then the Act and Rules may be adequate to protect the solicitor-client privilege in an appropriate case. However, where the complainant was involved in litigation and adverse in interest to the client of the law firm, the Act and Rules were not specific with respect to protection solicitor-client privilege. As a result, the Court declined to exercise its discretion in favour of the Law Society as the facts and circumstances of the case did not meet the test of “absolute necessity”.

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