Legal news and trends for Canadian in-house counsel and c-suite executives
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decision in R. v. Bruce Power Inc. may point to how the rule is being upheld in Canada. Norm Keith, a partner with Gowling Lafleur Henderson LLP in Toronto, wrote for Canadian Lawyer InHouse in September "a unique set of circumstances" led to the appeal court upholding the company's right to solicitor-client privilege. The case involved the prosecution of three defendants who were alleged to have contravened the Occupational Health and Safety Act leading to a worker being injured at a nuclear power plant in Tiverton, Ont. A member of the Power Workers' Union gave an internal investigation report, marked confidential, to the Ministry of Labour inspector. The Ontario Court of Appeal agreed with the trial judge that prejudice to the defence would be presumed when the Crown comes into possession of a docu- ment protected by solicitor-client privilege. This presumption hinges on whether or not the Crown could bring evidence to the contrary. In this case the Crown did not bring evidence to the contrary and privi- lege prevailed. "The Bruce Power case was favourable Tips for in-house counsel to maintain solicitor-client privilege: 1. It is crucial in-house lawyers clearly identify themselves as acting in their legal advisory role in order for communication to and from in-house counsel to be considered privileged. 2. If an in-house lawyer has more than one role, solicitor-client privilege will be available only when the in-house lawyer is acting in a legal advisory role, pro- viding legal advice. 3. Legal advice has a fairly prescribed audience. Advice broadly disseminated is more likely to be seen as "policy" and not "legal advice" and will not be afforded protection of solicitor-client privilege. To help maintain solicitor-client privilege keep circulation of documents containing legal advice to a minimum. 4. It is good practice to label documents such as, "solicitor-client privileged and confidential" where in-house counsel has provided legal advice. This will show intention. 5. In-house lawyers should write documents on legal department letterhead and sign documents in their legal role only. Business or executive titles should not be used where solicitor-client privilege is sought. 6. In-house lawyers should segregate and secure files where solicitor-client privi- lege may need to be claimed. Source: More than 250 Canadian Things I Wish I'd Known My First Year as General Counsel, produced by the Ontario chapter of the Association of Corporate Counsel and Gowling Lafleur Henderson LLP. The Law of Privilege in Canada The comprehensive text to understand, invoke and respond to privilege claims effectively The Law of Privilege in Canada is a comprehensive guide to privilege and confidentiality. It will help you understand privilege laws and how to use them. Written in clear language, it explains everything you need to know about privilege laws, including: ORDER your copy today Looseleaf & binder • $297 Releases invoiced separately (1-2/yr) P/C 0137030000 ISBN 0-88804-454-2 • history and purpose • the principles • the various privileges, how each currently operates, and their scope • a detailed look at the major cases and relevant legislation • practical explanations of how to invoke the privilege • exemptions and exceptions to privilege • the "key points" on each type of privilege in an at-a-glance format This resource keeps you current and includes the most relevant case law. The book is divided into self-contained chapters on different privileges for quick researching. For a 30-day, no-risk evaluation call: 1.800.565.6967 CL0210 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. INHOUSE FEBRUARY 2010 • 25 Robert W . H ubbard, Susan Magotiaux and S uzanne M. Duncan