The Nova Scotia Court of Appeal considered whether a civil servant may waive solicitor-client privilege that would otherwise attach to confidential legal advice received from a government lawyer. The applicant sought information regarding the legal status of a roadway in Digby County including whether it was public or private and, if it was public, which level of government was responsible for maintenance. A government official responded and referred to a legal opinion. The applicant brought a freedom of information request for a copy of the opinion. Her request was denied on the basis of solicitor-client privilege.
The lower court determined that solicitor-client privilege had been waived. The Department of Transportation and Infrastructure Renewal ("DTIR") appealed.
The judges of the court of appeal considered who had the authority to waive solicitor-client privilege. DTIR submitted that only the executive branch of Nova Scotia through an order-in-council of the Executive Council had the authority to waive privilege. Cited case law referred to waiver by the “executive branch of government” but did not specifically limit to the Executive Council. The court reasoned that there is some information that is known to employees of provinces that is confidential and not disclosed to cabinet (i.e. confidential information within the knowledge of support staff to independent boards and commissions). Thus, it cannot be that the Executive Council is the only authority to release this information.
The court considered the Carltona principle of distributed government which enshrines a Minister’s power to delegate. Where the exercise of a discretionary power is entrusted to a Minister of the Crown, it may be presumed that the acts will be performed not by the Minister in person but by responsible officials in his Department. This is the first case to expressly apply the principle to waiver of privilege. The court concluded that a civil servant may waive privilege of a legal opinion from a government lawyer. The court accepted that the framework promoted by the trial judge to determine whether a particular actor has authority is consistent with the Carltona principle. The court should consider “the authority of a particular government actor and determine whether the advice sought and any waiver “follow” or is “coextensive” with that person’s subject-matter and/or territorial responsibilities”. The court concluded that the government actor who released the information had the authority to waive privilege.
The court agreed with the trial judge’s consideration of the job description and reasoned that if the employee had the authority to acquire a legal opinion than he must have the authority to disclose it.
The court applied the test for waiver and held that the acts of the government actor met the test. The appeal was dismissed.
March 4, 2011
Link to Decision
Julia Wilkes
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