BC Court of Appeal to decide what’s covered by solicitor-client privilege in impaired driving appeals case

LAWYERS representing the Attorney General of BC are trying to quash the release of confidential documents leaked to Acumen Law Corporation, after Acumen found out government lawyers instructed an Immediate Roadside Prohibition adjudicator to revoke a licence suspension to prevent further legal headache, the BC Court of Appeal heard on May 19.

The case involves 19 pages of documents released by BC government in November 2015 to Acumen lawyer Kyla Lee as part of a Freedom of Information request. Joseph Arvay, a lawyer representing Acumen, said the 19 pages contain a conversation where Ministry of Justice lawyer Natalie Barnes gave “a command” telling the IRP adjudicator how to decide the case, in spite of the adjudicator’s objections.

“(Barnes) goes on to say, we want you to revoke … we want you to revoke because we don’t want this case to go up on judicial review,” Arvay told the court.

“In all practical purposes, this was not interpreted or received as a recommendation … the adjudicator ended up making a decision she did not want to make.

“It was no longer legal advice, it was a command,” Arvay said.

Angela Westmacott, representing the BC Attorney General, said the suggestion was a mere recommendation, as part of routine legal advice adjudicators are allowed to seek from government lawyers. That means, she argued, the documents are covered by solicitor-client privilege and cannot be released.

Westmacott’s arguments are part of an appeal filed after BC Supreme Court Chief Justice Christopher Hinkson ruled in April 2016 that “portions” of the 19 pages are not covered by solicitor-client privilege, and “can be made of use by” Acumen.

“(Hinkson’s decision) seems to say you might be providing legal advice, but you lose that privilege when you go too far in providing that legal advice,” Westmacott told the Court of Appeal, calling the decision a “game changer” for future information access requests.

“The case has significant implications for statutory tribunals and the lawyers who provide advice … this approach erodes long-standing principles of solicitor-client privilege.”

Arvay disagreed, arguing that Barnes, the Ministry of Justice lawyer, essentially made the decision for the adjudicator.

“When the communication is such that the effective decision-maker is the lawyer, not the adjudicator, that’s not advice … it’s not about looking at the quality of the advice, it’s looking at the nature of the advice,” Arvay told the court.

“If that’s something that has been going on and the government says, ‘it’s OK,’ then it’s time to say, ‘it’s not.’”