Ruel, Moore, Kalichman

Appeal from a Superior Court judgment granting in part an application to strike allegations and withdraw exhibits. Dismissed. Application for leave to introduce indispensable fresh evidence. Dismissed.

In the context of a class action authorized against religious communities on behalf of sexual assault victims, the respondent filed an application claiming compensatory and punitive damages. That application contains allegations and exhibits that allegedly demonstrate that the appellants were aware of the sexual assaults when they occurred and that they had tried to cover them up. The most significant of these exhibits supporting the allegations are three letters from a lawyer, written between 1990 and 2006. These letters were reported by media starting in 2010, including during an episode of the television program Enquête, broadcast on Radio-Canada. In addition, articles in online newspapers contain hyperlinks that to this day allow the public to download these letters.

The trial judge dismissed the appellants’ application to strike the allegations and to withdraw the exhibits relating to the letters at issue and the news reports that refer to them. The appeal raises only one question: did the judge err in concluding that the letters were not protected by solicitor-client privilege?

The case law recognizes that the actions of the holder of solicitor-client privilege – including his or her written and spoken words – can result in the waiver of this privilege. In this case, however, such a waiver did not result from the appellants’ action, but rather their inaction.

The appellants raised solicitor-client privilege shortly after the respondent filed the application for authorization in 2013. Yet, the letters were made public for the first time in 2010, and again in 2011. Since that time, it has been possible to access their content through hyperlinks on La Presse’s and Radio-Canada’s websites. In the meantime, the appellants did not take any active measures to try to assert the confidentiality of the letters. In fact, the hyperlinks at issue, which are essentially digital access routes to the exhibits themselves, are still accessible. This inaction cannot be justified by the simple fact that the content of the letters is broadcast on the Internet.

The appellants did not explain in what way it would be futile to try to stop La Presse or Radio-Canada from providing anyone the means to obtain a copy of the letters by simply clicking on a hyperlink. In the absence of such an explanation regarding the failure to assert their privilege, it cannot be presumed that it would be useless to take measures to protect the confidentiality of the letters. On the contrary, in this case, the fact that no measures were taken for over 10 years to prevent the downloading of letters over which solicitor-client privilege is asserted constitutes a waiver of this privilege.   

Although rendered in a common law province, the reasoning accepted in Federation of Newfoundland Indians Inc. v. Benoit (C.A. (N.L. C.A.), 2020-05-05), 2020 NLCA 16, SOQUIJ AZ-51685893, can be transposed to the present situation and reinforces the point of view that the inaction of the holder of the privilege can lead to its waiver, provided it is clear and unequivocal.

Text of the decision: http://citoyens.soquij.qc.ca