[2011] 2 F.C.R. D-11
Practice
Privilege
Judicial review of Public Service Labour Relations Board decision (2009 PSLRB 104) dismissing objection by Canada Revenue Agency (CRA) that Board having no authority to determine validity of claim for solicitor-client privilege—Ontario Ministry of Revenue employees offered employment with CRA following transfer of functions agreement—Respondent not offered position, filing unfair labour practice—Alleging refusal to re-hire him reprisal by CRA for respondent’s grieving of dismissal while employed with CRA—In preparing for hearing of merits of complaint, respondent receiving redacted documents from CRA—Board ordering CRA to provide affidavit establishing nature of contents of redacted pages, explaining why solicitor-client privilege claimed for redacted documents—Board reasoning that power to determine claims for legal privilege inherent in its adjudicative functions, fact it never becomes adverse in interest to a party—Seeing no basis for excluding determination of claims to legal privilege from implicit statutory power to decide questions of law—Whether Board’s order breaching solicitor-client privilege—Applicable test set out in MacMillan Bloedel Ltd. v. British Columbia (1984), 16 D.L.R. (4th) 151 (B.C.S.C.): relevance of documents for which Crown privilege claimed should be determined before their examination by the court to determine validity of claim for privilege—MacMillan Bloedel test equally applicable to solicitor-client privilege claims in proceedings, regardless of adjudicative forum where made—Herein, Board not applying MacMillan Bloedel test—Board erring in “assuming” relevance of redacted pages without forming a view of relevance on basis of test—Solicitor-client privilege beyond specialized expertise of Board—Application of MacMillan Bloedel test revealing that redacted pages not relevant to issues raised by respondent’s complaint—Application allowed.
Canada (Attorney General) v. Quadrini (A-384-09, 2011 FCA 115, Evans J.A., judgment dated March 23, 2011, 21 pp.)