Canadian Lawyer InHouse

39 CANADIANLAWYERMAG.COM/INHOUSE JULY/AUGUST 2018 T he legal landscape around privilege is shifting and under mounting scrutiny in growing parts of the world. The European Parliament, following the unprec- edented leak of the Panama Papers, approved late last year a long list of recommendations that take aim at legal privilege. In a case that reverberated across the legal world, the Eng- lish High Court last year limited the scope of privilege for documents prepared during an investigation. The Association of Corpo- rate Counsel, a global association represent- ing more than 43,000 in-house lawyers in 85 countries, requested leave to file an amicus curiae urging the U.S. Court of Appeals for the Federal Circuit to make clear that in- house counsel's post-complaint communi - cations and work with clients are protected to the same extent as outside trial counsel's attorney-client communications and work. But Canadian lawyers, and particularly in-house counsel, can breathe easy. So far, Canadian courts and federal and provincial legislatures have shown little interest in for - eign court decisions and legislative develop- ments that seek to narrow the scope of privi- lege. The Federal Court of Appeal this year overturned a decision by a Federal Court judge who wrote a long and erudite decision based predominantly on American law and American academic writings to limit com - mon interest privilege. "For some reason that is not clear to me, Canadian courts have taken a rather unique approach and have not been interested in developments around the world," observes Adam Dodek, author of the "Solicitor-Client Privilege" report and dean of the common law section at the University of Ottawa. "So part of the result of that has been that Canada has emerged with arguably the strongest protection for solicitor-client privilege of any Commonwealth jurisdiction that I am familiar with." The Supreme Court of Canada has without question played the leading role in strengthening privilege. The nation's high - est court has over the past two decades con- sistently reiterated, strengthened and even elevated what was once merely an evidentia- ry privilege into a quasi-constitutional right. In two separate but companion decisions issued in late 2016, Alberta (Information and Privacy Commission) v. University of Calgary and Lizotte v. Aviva Insurance Co. of Canada, the Supreme Court robustly protected litiga - tion briefs and privileged lawyer-client com- munications. Yet, there are still palpable concerns with- in the Canadian legal community that privi- lege is being eroded or may be in the future. That is in large part more because Canadian courts are still grappling with the reach that privilege has, assert legal experts. The ab - sence of clear legal guidance emanating from legislation or policies from regulatory bodies has made the task facing administrative tri- bunals and lower courts more daunting. The rising prominence of in-house counsel, espe- cially over the past 20 years, too, has compli- cated matters, if only because of their mixed roles as legal and business advisers. On top of that, the courts and tribunals are still trying to interpret Supreme Court guidance. "The Supreme Court has been continu - ing to increase the protection that privilege gives us, but that means it takes time for the new changes to work themselves through all the lower courts and to figure out the details and understand the new landscape — that is why there have been so many new cases around privilege in recent years," explains Scott Bower, co-head of the research and opinion group at Bennett Jones LLP. It should come as no surprise then that there may be "some resistance" toward in - creasing the protection of privilege by ad- ministrative tribunals because it makes their work more "difficult and challenging," says Bower. Nor should it be startling that con- flicting decisions from the lower courts may under the Privilege microscope There are concerns within the Canadian legal community that privilege is being eroded or may be in the future. BY LUIS MILLÁN L a w D e p a r t m e n t M a n a g e m e n t

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