What We Do Advocacy on Behalf of Canada’s Law Societies

Court Interventions

The Supreme Court of Canada ultimately decides the outcome of issues of national importance related to the legal profession and core democratic values. On behalf of Canada’s law societies, the Federation of Law Societies of Canada regularly intervenes in select cases to defend these values.

Law Society of Saskatchewan v. Peter V. Abrametz, Factum (Decision)

The case, arising out of disciplinary proceedings brought by the Law Society of Saskatchewan (“LSS”) against Mr. Abrametz, raises important issues about how delay in administrative proceedings should be addressed, including whether the approach to such issues should be changed following the Court’s decision in R. v. Jordan. The LSS appealed the decision of the Saskatchewan Court of Appeal overturning the LSS Hearing Committee’s refusal to stay proceedings against Mr. Abrametz on the grounds of undue delay. In reaching its decision, the appeal court upheld the Hearing Committee’s findings of misconduct but found that there was inordinate delay causing prejudice to Mr. Abrametz and granted his request for a stay of proceedings. The decision of the Saskatchewan Court of Appeal effectively lowered what has been understood to be a high bar for the granting of a stay, departing from the Supreme Court of Canada’s approach to assessing delay in administrative proceedings set out in Blencoe v. British Columbia (Human Rights Commission).

Keatley Surveying Ltd. v. Teranet Inc., Factum (Decision)

Both the majority and minority decisions found that Crown copyright vested under s. 12 of the Copyright Act in the land surveys registered in the Ontario government land registration system and dismissed the appeal. The Court did not rule on the specific issue raised by the Federation and CanLII, i.e., whether public legal documents in general are subject to a broad and comprehensive Crown copyright, as interpreted under s. 12 of the Copyright Act, and what the consequences of those proprietary rights may be. The Court left the issue for another time, with the minority decision stating that it “raises unique and complicated issues that are beyond the scope of this case.”

Her Majesty the Queen, et al. v. Derek Brassington, et al., 2018 Factum (Decision)

The issues in this case revolved around informer privilege and the importance of balancing it against solicitor-client privilege. Clarification was sought on the following questions: when should clients share informer privileged information with Counsel; and what rules should govern the process of sharing information with Counsel? The Federation argued information can only be shared by an accused when that information is necessary to determine if there are grounds to bring an “innocence at stake” application. Requiring counsel and their clients to bring court applications before this information is shared would violate the accused’s right to a solicitor-client relationship that is free from state interference. The Court held that jurisprudence prevents piercing informer privilege unless the accused can show that his or her innocence is at stake.

Iggillis Inc. and other v. Minister of National Revenue et al, 2017 Factum (Decision)

This case before the Federal Court of Appeal examined whether the disclosure of information protected by solicitor client privilege to some parties leads to a total loss of privilege. The Federation took the position that the total-loss concept relied upon by the applications judge has become obsolete, arguing that the idea that disclosing solicitor-client privileged information to even one person causes a loss of the privilege vis-à-vis everyone is irreconcilable with the requirement that solicitor-client privilege must remain as close to absolute as possible.

Groia v. Law Society of Upper Canada, 2017 Factum (Decision)

This case raised several important questions:  Does the constitution allow a law society, or a court reviewing a law society’s decision on appeal, to discipline a lawyer for conduct in court that the trial judge does not consider problematic?  What limits, if any, should be placed on a lawyer’s freedom of expression when defending a client in a court of law? At what point does passionate, aggressive, and zealous advocacy become unprofessional conduct?

Sidney Green v. Law Society of Manitoba, 2016 Factum (Decision)

This case considered whether law societies are justified in imposing mandatory Continuing Professional Development requirements on their members and whether they are also justified in suspending members who refuse to meet those requirements.  The Federation as intervenor argued that law societies should be able to suspend members when it is required to do so to achieve their regulatory mandate to protect the public. Ruling that the standard to be applied in reviewing a law society rule is reasonable, the Supreme Court of Canada affirmed the law society’s decision to suspend Mr. Green for failure to complete the required Continuing Professional Development training, finding it was reasonable.

Information and Privacy Commissioner of Alberta v. Board of Governors of the University of Calgary, 2016 Factum  (Decision)

The Supreme Court of Canada’s decision in Information and Privacy Commissioner of Alberta v. Board of Governors of the University of Calgary affirmed the sanctity of solicitor-client privilege. In the case, the university refused to provide a former employee’s personal records to the provincial Information and Privacy Commissioner. As an intervener, the Federation argued the fundamental importance of solicitor-client privilege requires that the legislation should be interpreted in a restrictive manner, so as not to threaten privilege. The Supreme Court of Canada agreed with the Federation’s position, ruling that solicitor-client privilege should be near-absolute.

Attorney General of Canada (Canada Revenue Agency) v. Chambre des notaires du Québec et al., 2016 Factum (Decision)

This case raised important issues about the scope of solicitor-client privilege in the face of a production order from the Canada Revenue Agency (CRA). The definition of solicitor-client privilege in the Income Tax Act, dating back to 1965, excluded accounting records from the documents protected by privilege. The Federation argued successfully that the requirement to produce documents under the threat of prosecution or penalty compromises a lawyer’s duty to their clients to protect privileged information and violates clients’ rights to privacy, undermining the Charter’s protection of privilege.

Canada (National Revenue) v. Thompson, 2016 Factum (Decision)

In this companion to Attorney General of Canada (Canada Revenue Agency) v. Chambre des notaires du Québec et al, the Federation argued that the Income Tax Act provides a court with judicial discretion to protect solicitor-client privilege by refusing the Minister’s application for a compliance order, or by imposing an evidentiary procedure for that determination, even when the statutory criteria are met. The Court agreed with this position.

SOCAN 2011 Factum (Decision)

The Federation and CanLII were joint intervenors in this case, which examined the scope of fair dealing under the Copyright Act. The Federation and CanLII argued that fair dealing should be interpreted broadly and asked the Court to apply the “research” in fair dealing provision of the Copyright Act in a way that supports the goal of access to justice. The Court dismissed the appeal, finding that the fair dealing exception must not be interpreted restrictively and “research” must be given a large and liberal interpretation.

Canadian National Railway Co. v. McKercher LLP, 2013 Factum (Decision)
In a unanimous decision, the Supreme Court clarified the rules relating to conflicts of interest. confirming the “bright line rule” established in the case of R. v. Neil.  This rule holds that a lawyer may not concurrently represent clients whose legal interests are opposed without first obtaining their consent. The Court also rejected suggestions that the rule does not apply to unrelated matters, that it creates a rebuttable presumption of a conflict of interest, and that it attracts a balancing of factors. The Court identified three limitations to the scope of the bright line rule: it applies only when the immediate legal interests of the clients are directly adverse; it cannot be used tactically; and it does not apply in situations in which it would be unreasonable for clients to expect that a law firm will not act against it in unrelated matters. The Court also held that when the bright line rule does not apply, a conflict of interest may still exist if there is a substantial risk that representation of the client would be adversely affected by the lawyer’s own interests or both the lawyer’s duties to another current or former client or to a third party. The rules in the Federation’s Model Code of Professional Conduct governing conflicts of interest reflect the bright line rule and are consistent with the Court’s decision.

Gilles Doré v. Pierre Bernard, in his capacity as Assistant Syndic of the Barreau du Québec, et al., 2012 Factum (Decision)

This case involved a claim by a member of the Barreau du Quebec that a decision to discipline him for unprofessional conduct over a letter he wrote to a judge violated his constitutionally protected right to freedom of expression. The Federation intervened on the issue, arguing that lawyers are bound by the professional conduct rules at all times. While finding that administrative decision-makers must respect constitutional guarantees in the exercise of their discretion, the Court held that the decision to reprimand the member represented a proportional balancing of his expressive rights with the statutory objective of ensuring that lawyers behave with “objectivity, moderation and dignity. Lawyers’ actions, even in their private life, must reflect well on the profession in order to maintain public trust and respect in it.

Ontario (Public Safety and Security) v. Criminal Lawyers Association, 2010 Factum (Decision)
In a case involving the application of the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Supreme Court of Canada confirmed statements in earlier decisions describing solicitor-client privilege as being of a “near-absolute” nature. In a unanimous decision, the Court accepted Federation arguments that the public interest override provision should not apply to documents claimed to be exempt from disclosure on the basis they are protected by solicitor-client privilege. In reaching this conclusion, the Court rejected an argument that failure to exercise the public interest override for certain documents over which solicitor-client privilege is claimed was a breach of section 2(b) of the Charter.

Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 Factum  (Decision)
In a unanimous decision, the Supreme Court of Canada rejected the claim that the Privacy Commissioner has a right to review documents over which solicitor-client privilege is claimed to determine if the claim is justified. In dismissing the appeal, the Court accepted the Federation’s view that solicitor-client privilege must be as near absolute as possible. The Court also found that legislative language purporting to allow incursions on solicitor-client privilege must be interpreted restrictively. 

The Law Society of Upper Canada v. Minister of Citizenship and Immigration, The Canadian Society of Immigration Consultants and the Attorney General of Canada, Factum (Decision)

This case involved a challenge to the constitutional validity of regulations under the Immigration and Refugee Protection Act which required law clerks to become members of the Canadian Society of Immigration Consultants (CSIC), which sometimes investigates law firm files. The Federation supported the position of the law society that the requirement interfered with the independence of the bar and could threaten solicitor client privilege. The Court rejected these arguments finding that the regulations were not outside the jurisdiction of the federal government and that they neither threatened the independence of the bar nor threatened solicitor client privilege.

Adil Charkaoui v. Minister of Citizenship and Immigration, et al., 2006 Factum (Decision)

This case involved the constitutionality of procedures for determining the reasonableness of a security certificate issued under the Immigration and Refugee Protection Act (the “IRPA”). The Federation argued that the security certificate and detention review provisions violated the constitutional principles of the rule of law and judicial independence and the related required constitutional role for counsel. The Federation argued that the appropriate remedy would be to read into the IRPA a mandatory role for “special counsel” when the Act precludes the security certificate subject’s own counsel from providing effective assistance.

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