Canadian Lawyer InHouse

JULY/AUGUST 2018 40 INHOUSE surface. The decision by the Federal Court of Appeal in IGGillis Holdings Inc. v. Min- ister of National Revenue is a case in point. The decision issued this past March literally sparked a collective sigh of relief within the legal community after the Federal Court of Appeal overturned a lower court ruling and confirmed the judge-made doctrine of transactional "common interest privilege." In other words, following the decision by the Federal Court of Appeal, parties with a common legal interest can share privileged documents and information without waiving privilege under the doctrine of common in - terest privilege. Questions, though, remain over its reach and whether common interest privilege applies only to mergers and acquisi- tions, says Michael Feder, who represented the Federation of Law Societies of Canada, which intervened in the case. "The underly- ing idea that we shouldn't treat privileged as waived just because there's been a confiden- tial sharing, that logic seems to hold outside the M&A context," adds Feder, a litigation partner with McCarthy Tétrault LLP. "It could hold in the context, potentially, of an investigation, of other things that parties may be doing in which they have sort of in - terest in common. And I'd add it seems con- sistent with the modern approach to waiver of privilege, which is basically not to treat privilege as so easily lost." But it also appears that the courts, while heeding Supreme Court guidance and reit - erating the central importance that privilege plays in the administration of justice, has over the past year arguably made it in certain cases more difficult, more time-consuming and in the end more expensive to assert privilege. That certainly seems to be the case in mat - ters dealing with workplace internal investiga- tions, an issue that presents unique challenges and is laden with booby traps for in-house counsel. In a closely watched decision, the Alberta Court of Appeal weighed in on the intersection between privilege and internal investigations and held that the contents of an internal investigation may be privileged, but the basis for the claim may be scrutinized. In Alberta v. Suncor Energy, the appeal court held that a statutory obligation to carry out an investigation and prepare a report does not preclude from asserting privilege over the documents and records stemming from the internal investigation. (The Supreme Court dismissed an application for leave to appeal this spring.) The decision at first glance is yet another positive decision that strengthens the standing that privilege holds. But, practically speaking, that's another matter. "It's going to be much more onerous now to logistically as - sert privilege because you are going to have to prove it on a document-by-document basis, which is a time-consuming thing to do and so it is going to be more costly to do," says Bower. More ominously, for some at least, the Su - preme Court may have inadvertently embold- ened legislators to pierce privilege by holding in both Lizotte and University of Calgary that legislatures will have to amend their laws should they wish to authorize any infringe - ment of the privilege. "The direct impact of Lizotte and University of Calgary is to say to legislators and parliamentarians the only way you're going to have any chance of overriding or piercing privilege is to be absolutely explic - it," notes Dodek. "So it will be interesting to see how legislators respond, and then how the courts will respond to those circumstances." The federal government is having a go at it with its introduction of Bill C-58, An Act to amend the Access to Information Act and the Privacy Act. Bill C-58 would expressly authorize both the Access to Information and Privacy commissioners to examine privileged government records as part of their assessment of the validity of claims made by government that those records are exempt from disclosure because they are shielded by professional se - crecy, litigation privilege or solicitor-client privilege. Feder has no problem with it so long as the commissioners are reviewing privilege claims made by other parts of government in a quasi or even fully adjudicated process. "It is a relatively small incursion into privilege that carries with it a number of benefits. Gov - ernment transparency is good, and allowing government to make privilege claims that no one can review is bad — it's as simple as that." Bower, on the other hand, believes that legis- latures and Parliament can pierce privilege to some degree, "but I think there are going be limits on it to the degree they can." Others are not so sure. Anti-money- laundering and terrorist provisions are ripe 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. ADAM DODEK, University of Ottawa Maintaining privilege while conducting internal investigations is a challenge. "This is an area fraught with peril," says Michael Feder, a litigation partner with McCarthy Tétrault LLP. "It's important to ensure that if in-house counsel is directing or conducting an internal investigation that the way the investigation is being conducted is in accordance with the company's interests, the client's interests and that it isn't worsening the situation." He says having an outside counsel look over an in-house counsel's shoulder would be a wise thing. Adam Dodek, author of "Solicitor-Client Privilege," says the mandate is key. It has to be very clear that the lawyer that is being assigned to conduct the workplace internal investigation is expected to conduct a legal task and will provide legal advice. IH TIPS OVER MAINTAINING PRIVILEGE WHILE CONDUCTING INTERNAL INVESTIGATIONS

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