[2011] 2 F.C.R. D-18
PRACTICE
Privilege
Motion for order requiring that respondent, Canadian Judicial Council (CJC), deliver complete record for decision subject of judicial review in accordance with Federal Courts Rules, SOR/98-106, r. 317—Specifically, applicant seeking report prepared for CJC by Professor Martin Friedland regarding applicant’s complaint against judge of Ontario Superior Court of Justice (Friedland Report)—CJC objecting to disclosure on basis of confidentiality, solicitor-client privilege—CJC passing “Complaints Procedures” to assist conduct of investigation of complaints—Procedures defining “Counsel” as “a lawyer who is not an employee” of CJC—Professor Friedland engaged as “Counsel” to conduct further inquiries regarding applicant’s complaint—Terms of engagement letter not intended to create solicitor-client relationship; stating that purpose of engagement not to provide legal advice—Whether CJC’s engagement of Professor Friedland giving rise to solicitor-client relationship; whether information sought to be produced protected by public interest privilege—While part of Friedland Report attracting solicitor-client privilege, not meaning that entire report should be withheld on grounds of privilege—Possible to sever “fact-gathering” investigative work product prepared by “Counsel”—Facts separate, distinct from advice given on legal issues that is privileged—Facts gathered by Professor Friedland in role as “Counsel” regarding trial, for clarification of allegations cannot be withheld simply because another part of report dealing with legal issues, advice—Instead, redaction of legal advice in report appropriate remedy—In public interest to ensure that meaningful, effective judicial review can be conducted—Also in public interest for people to know how CJC deals with complaints against judges so as to ensure public has confidence in integrity of process and to ensure application for judicial review can be conducted in meaningful way—Disclosure of facts at issue herein would not impair present or future investigations of complaints against members of judiciary—Accordingly no public interest privilege attaching to parts of Friedland Report not constituting legal advice, not protected by solicitor-client privilege—Those parts of report should be produced—Motion granted in part.
Slansky v. Canada (Attorney General) (T-716-06, 2011 FC 476, Milczynski P., judgment dated April 19, 2011, 19 pp.)