This topic deals with investigators who have been retained by legal counsel, with the purpose of reporting to legal counsel, who, in turn, will prepare and give legal advice to the client. The question is whether this investigative report is covered by legal advice privilege.

The leading case on this subject is the Ontario Court of Appeal decision in General Accident Assurance v Chruz.

Doherty J.A., in partial dissent, however with concurrence of the majority on this issue, set out the basic premise of such circumstances where the lawyer retains a third party to perform an investigation, the report of which in turn, is then provided to the client:

The authorities do, however, establish two principles:

-- not every communication by a third party with a lawyer which facilitates or assists in giving or receiving legal advice is protected by client-solicitor privilege; and

-- where the third party serves as a channel of communication between the client and solicitor, communications to or from the third party by the client or solicitor will be protected by the privilege as long as those communications meet the criteria for the existence of the privilege.

The very fact that the investigator is retained by the lawyer does not automatically lead to a finding of a privilege in that report.

In circumstances where the third party serves as a channel of communication, such communications will be privileged, provided that the normal tests are met. This would include a context in which the third party meets with counsel to explain the business intricacies of the company.

However, where the third party’s mandate is solely to gain information from outside sources, there would be no solicitor client privilege. Doherty J.A. stated:

If the third party is authorized only to gather information from outside sources and pass it on to the solicitor so that the solicitor might advise the client, or if the third party is retained to act on legal instructions from the solicitor (presumably given after the client has instructed the solicitor), the third party's function is not essential to the maintenance or operation of the client-solicitor relationship and should not be protected.

In this instance, the external report provided by the investigator to counsel was ordered to be produced.

The Court of Appeal concluded that the test is whether the third party communications are in furtherance of a function which is essential to the existence or operation of a relationship between the lawyer and the client or simply gathering information. The former carries with it the privilege where the latter does not.

This test was applied in the Supreme Court of B.C. decision of the College of Physicians and Surgeons of B.C. v B.C. Information and Privacy Commissioner.

The case arose due to a request made under the B.C. Freedom of Information and Protection of Privacy Act for certain documents created as a result of a complaint filed against a physician.

The complaint arose out of an employment relationship between the applicant and her employer, a physician. The allegation had been reviewed by the Sexual Conduct Review Committee which had decided not to proceed with an inquiry to determine wrongdoing.

In coming to this conclusion, the Committee had reviewed four expert reports which had been requested by the lawyer for the College. Two of these reports were in writing and two were oral, the latter being summarized in memoranda prepared by the lawyer.

The lawyer did provide to the applicant summaries of the reports, an issue which raised the question of waiver of any privilege.

The applicant applied to the Commissioner appointed under the statute for the documents to which a defence of solicitor client privilege was raised, as incorporated under the statute.

There was an additional defence offered under the Act which concerned advice or recommendations developed for a public body, which ultimately won the day in the Court of Appeal.

The Commissioner’s decision to order production of the documents was upheld by the chambers judge on first review, from which a further appeal was made to the Court of Appeal.

The Commissioner had found, obiter, that the privilege had not been waived, a conclusion which was reversed on the first review.

As to the main point of legal advice privilege, the appeal court identified two main questions, the first of which, as was the case in Gower, what was the mandate of the investigation – was it to investigate only, or was it to investigate and opine ?

There are two questions that arise in considering whether legal advice privilege applies to the Documents. The first is whether in receiving or creating the Documents the College’s lawyer was acting as a lawyer and not an investigator. The second is whether the Documents, which are communications between third parties and the College’s lawyer, are communications of legal advice, opinion or analysis between the lawyer and the College.

On this issue, the Court of Appeal reversed, in essentially a factual determination of the nature of the lawyer’s mandate:

In my opinion, the Commissioner and the chambers judge erred in finding that the College’s lawyer was not acting in her capacity as a lawyer when she investigated the Applicant’s complaint. She was acting on her client’s instructions to obtain the facts necessary to render legal advice to the SMRC concerning its legal obligations arising out of the complaint. As such, she was engaged in giving legal advice to her client.

This conclusion then led to the next question in the analysis – was the investigative report one on which this privilege may be asserted or was it strictly fact finding ?

In the acceptance and application of the Doherty J.A. reasoning, the Court of Appeal found that this report failed to meet the “integral” test and ordered the reports to be produced:

Doherty J.A. tied the existence of the privilege “to the third party’s authority to obtain legal services or to act on legal advice on behalf of the client” (at para. 125). He reasoned that:

In either case the third party is empowered by the client to perform a function on the client’s behalf which is integral to the client-solicitor function. The agent does more than assemble information relevant to the legal problem at hand.

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[50]   In summary, third party communications are protected by legal advice privilege only where the third party is performing a function, on the client’s behalf, which is integral to the relationship between the solicitor and the client. I find this analysis persuasive.

[51]   Applying this analysis to the communications between the College’s lawyer and the experts from whom opinions were obtained in this case, I conclude that the experts did not perform a function on behalf of the client which was integral to the relationship between the College and its lawyer. The experts were not authorized by the College to direct the lawyer to act or to seek legal advice from her. The experts were retained to act on the instructions of the lawyer to provide information and opinions concerning the medical basis for the Applicant’s complaint. While the experts’ opinions were relevant, and even essential, to the legal problem confronting the College, the experts never stood in the place of the College for the purpose of obtaining legal advice. Their services were incidental to the seeking and obtaining of legal advice.

The documents were determined not to be subject to privilege. As noted, however, the Court of Appeal declined to order the production of the documents due to a statutory exception particular to a public body:

13   (1)  The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister.

These reports met the definition as the Court of Appeal determined:

I am similarly of the view that the word “advice” in s. 13 of the Act should not be given the restricted meaning adopted by the Commissioner and the chambers judge in this case. In my view, it should be interpreted to include an opinion that involves exercising judgment and skill to weigh the significance of matters of fact. In my opinion, “advice” includes expert opinion on matters of fact on which a public body must make a decision for future action.

[114]  In any event, the experts’ reports did provide “advice”, even if that word were given the Commissioner’s narrow interpretation. The experts were expressly asked by the College’s lawyer for their opinions of whether hypnosis had been performed and for suggestions for further investigation of the complaint. Two of the experts expressly commented on whether the evidence was sufficient to support the Applicant’s allegations, and one provided his view on whether Dr. Doe’s explanation was “acceptable and reasonable”. Thus, the reports contain advice on whether the College should take further action, bringing them within the meaning of “advice” as found by the Commissioner.

[115]  For all of the above reasons, I am of the view that the College may refuse to disclose the Documents pursuant to s. 13 of the Act.