Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m O C T O B E R 2 0 1 8 7 N O VA S C O T I A PROVINCE CANNOT CLAIM PRIVILEGE IN DEFAMATION CASE BROUGHT BY EMPLOYEE T he government cannot publicly imply an employee acted without instruc- tion, then hide behind solicitor-client privilege to keep those instructions confidential, the Supreme Court of Nova Scotia has ruled. Justice John Murphy determined that official statements made by the government "nullified confiden- tiality and ended the privilege which otherwise applied." Alex Cameron, a lawyer who worked with the provincial justice department for 26 years, intends to sue his former employer for defamation, abuse of public office, constructive dismissal and violation of his constitutional rights. He contends the government damaged his reputation and professional credibility by making public statements that implied he acted without instructions in a controversial court case. The only way Cameron said he could clear his name was to present evidence that documents those instructions. He sought a ruling on the privilege issue before pursuing his claim in open court to avoid being accused of breaching an ethical or legal duty by disclosing the communication. The government argued that its com- munications with Cameron were protected by solicitor-client privilege. Murphy disagreed. Although he found in Cameron v. Nova Scotia (Attorney General) 2018 NSSC 185 that solicitor-client privilege did apply to the commu- nications in question, he found the government had waived that privilege. "The Respondents cannot elect to publicly suggest that Mr. Cameron acted without instructions or contrary to instructions, and at the same time assert privilege to prevent him from revealing his understanding of the instructions. "In the circumstances of this case," Murphy added, "it would be unfair to main- tain privilege and thereby bar Mr. Cameron from claiming he was disadvantaged." The government also maintained that a waiver of solicitor-client privilege would undermine public faith in the legal profession and constitute abuse of process. It relied on Manning v. Epp, 2006 CANLII 24126, a case in which former counsel for a municipality made claims, including defamation, against municipal officials. The court struck the claim, deeming it unprofessional and an abuse of the process of the court. The Ontario Court of Appeal agreed with that ruling. Nova Scotia's Supreme Court found that the facts and allegations in the Ontario case were "extreme." The claim rested almost entirely on information the plaintiff obtained from his former client during a retainer. In the present case, the claim is based principally on public statements the respondents made to media about Cam- eron's work, Murphy noted. At issue in the current case are comments Cameron made in a brief prepared as part of an appeal filed by the Sipekne'katik First Nation against the govern- ment's approval for storing natural gas in nearby salt caverns. The brief put forward by Cameron maintained that the government had a legal duty to consult only "unconquered people." The brief was subsequently withdrawn amid a public outcry and Premier Stephen McNeil stating the "brief went way beyond where it needed to go." The justice minister at the time publicly agreed with the premier's stance. — donalee Moulton N E W B R U N S W I C K SUING A MUNICIPALITY WHEN INJURED NOW REQUIRES NOTICE I t may now be more difficult to slip and sue a municipality in New Brunswick. Effec- tive Jan. 1, the provincial government repealed the Municipalities Act and replaced it with the Local Governance Act. That new legislation requires individuals injured in locations main- tained or owned by municipalities to give notice within 90 days. Without such notice, they will not be able to claim damages for personal injury. No limitation period previously existed, and the new restriction may prove problematic given the often-long delays between injury and legal action, notes Véronique Guitard, an associate with Cox & Palmer in Fredericton. "As a defence lawyer, if I want to add [a municipality] as a third party, it will be too late in many cases." There are other issues with the legislation. It requires, for example, that the municipality must be informed within the required period, but it does not specify who must be notified. This could potentially create significant problems for injured parties if their notification is overlooked or deleted because it went to the wrong person. The act does give injured individuals and their lawyers an out, but it is an ambiguous relief. Section 191 states that failure to give notice means the action will be barred unless there is a "reasonable excuse." "We're not sure what the courts will consider a reasonable excuse," says Guitard. — donalee Moulton "As a defence lawyer, if I want to add [a municipality] as a third party, it will be too late in many cases." Véronique Guitard Cox & Palmer REGIONAL WRAP W H A T ' S H A P P E N I N G F R O M C O A S T T O C O A S T QUEBEC LAB DESIGNS ONLINE DISPUTE RESOLUTION PLATFORM P.8 B.C. PROVINCIAL COURT JUDGES SEEK TRANSPARENCY ON PAY P.12

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