Legal Privilege, Email and the Continuum of Communication

Written By Scott Bower, Russell Kruger and Ioana Rosu

Solicitor-client privilege extends not only to legal advice provided directly to a client, but to the whole "continuum of communications" in which the advice is given, the Alberta Court of Queen's Bench recently confirmed in Alberta (Municipal Affairs) v Alberta (Information and Privacy Commissioner), 2019 ABQB 274 [IPC]. In IPC, the Court determined that email chains discussing legal advice without the direct involvement of counsel were protected by solicitor-client privilege.

IPC is a judicial review of a decision by the Information and Privacy Commissioner of Alberta, who ordered that the Alberta Emergency Management Agency (AEMA) disclose certain documents. Previously, AEMA refused to disclose the documents in response to an access to information request on the basis they were protected from disclosure by legal privilege under section 27(1) of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25. In-house counsel from Alberta Justice and the Solicitor General prepared the documents as part of ongoing arbitration following the flooding in the town of High River.

On judicial review, the Court found that the documents did not have to be disclosed as they were protected by solicitor-client privilege. The Court focused its analysis on a set of documents described as follows:

There are emails in "chains" that are not directly between lawyer and client, or lawyer and lawyer, but have been sent by and received from members of the client group or department. Communications in this category request and give information, make inquiries, answer questions and otherwise relate topically to those in which legal counsel are directly involved.

The Court concluded that these email chains "form part of a discrete body of communications that includes clearly privileged material" because they "transmit or comment on" the privileged work product.

The Court found that the case law supported a "broad and contextual view of solicitor-client privilege." It considered appellate authorities from several Canadian jurisdictions that adopted the concept of a "continuum of communications" surrounding legal advice. In British Columbia (AG) v Lee, 2017 BCCA 219, the BC Court of Appeal held that an email chain containing staff discussion about a lawyer's advice was privileged because it was part of the "continuum of communications" and that permitting "disclosure of this email exchange would disclose the legal advice itself and accordingly cannot be severed from the protected whole." Similarly, New Brunswick v Enbridge Gas New Brunswick Limited Partnership, 2016 NBCA 17, referred to applying solicitor-client privilege to a "continuum of communications."

The Court's decision in IPC, and the appellate decisions it cites, follow the trend at the Supreme Court of Canada that underscores the importance and strength of solicitor-client privilege. Importantly, IPC recognizes the practical implications of legal advice communicated and distributed by email, adapting to the realities of modern-day communication. It is not just the email from a lawyer that contains the advice that is privileged. Email discussions requesting and giving information, making inquiries, answering questions and otherwise relating to the topics that directly involve the legal advice are also privileged, even if the lawyer is not directly part of the email chain.

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