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the question did not relate to the solicitor-client relationship between Solmon and Kaiser. "We said, 'OK, who's paying for all of this legal work, because this is expensive.' So we brought a motion to compel his lawyer, Mel Solmon, to disclose who's paying. He claimed privilege. But the point is, it wasn't really Kaiser's money. He says he had no money. . . . That's why we brought the motion." By ruling that the identity of the person paying the lawyer's fees was privileged information, Davis says the courts have essentially closed the door on Greymac. "The courts have extended the umbrella that privilege will protect, so that transactions that were otherwise contemplated not to be privileged in the Greymac case are now privileged," he says. "Where the Court of Appeal erred is extending the blanket of privilege over transactions and over the names of people who are not in the solicitor-client relationship. Assuming that a third person was the person pay- ing the bill, how could the privilege ever extend to somebody who was not the client of the solicitor? It makes no sense, and that's where the error occurred. Hopefully one day someone will have the opportunity to take this issue to the Court of Appeal." Cameron Wetmore, of Solmon Rothbart Goodman LLP, worked with Solmon in Re Kaiser and suggests the link in Cunningham between solicitorclient privilege and any potential prejudice to clients will always make it difficult to rebut the presumption of privilege. "An adversary in litigation is always going to want [the information] for some purpose in the litigation — it's always going to be prejudiced," he says. Solmon says the Supreme Court of Canada has addressed the rebuttal of the presumption of privilege in two different contexts, and some might be "curling the two together." In Maranda, the court dealt with solicitor-client privilege as it related to a third party — or "the outside world," as Solmon more broadly characterizes it — seeking information from a lawyer. In this case, police sought information in a search warrant executed on a law firm. In Cunningham, solicitor-client privilege addressed a situation in which the lawyer had a dispute with his client when the lawyer tried to withdraw a legal aid case. Solmon suspects that Cunningham is being "adopted as an approach to all solicitor-client privilege. I think the court seemed to distinguish between solicitor-client privilege where you are involved with your client [in Cunningham], and where you are involved with the outside world [in Maranda]," says Solmon. "Cunningham doesn't really distinguish between solicitor-client privilege vis-à-vis the client and solicitor-client privilege vis-à-vis the rest of the world. Using that test [in Cunningham], it's hard to find any information that wouldn't prejudice the client vis-à-vis the third party." Your Canada-wide guide to enforCing Creditor rights New PublicatioN commercial Debt collectioN iN caNaDa: a legal HaNDbook Editor: david Franklin, ad.E. Commercial Debt Collection in Canada: A Legal Handbook is the only desktop resource designed to provide quick answers to your debt collection questions. organized by topic for easy consulting, this new title offers practical guidance on enforcing creditor rights anywhere in Canada, and the procedures available under common law and civil law. QuiCkLy FinD THe CorreCT LegAL ProCeDure insiDe or ouTsiDe your JurisDiCTion Softcover approx. 340 pages october 2012 978-0-88804-606-2 this one-stop reference: • analyzes each jurisdiction and discusses a variety of topics that are relevant to exporters involved in cross-border and inter-provincial commerce, and to attorneys, export insurers, financial institutions, and collections agencies whose clients conduct business in Canada • identifies interjurisdictional and/or conflict of law issues • discusses topics unique to debt recovery, such as insolvency, cargo claims, remedies, contracts and international considerations Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. if you have been retained to enforce a judgment originally granted in another province or territory, you will want to begin your research here. orDer # 804606-65201 $95 AvAiLABLe risk-Free For 30 DAys order online: www.carswell.com Call Toll-Free: 1-800-387-5164 in Toronto: 416-609-3800 CAnADA LAW Book® www.CANADIAN L a w ye r m a g . c o m June 2013 45

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