IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

British Columbia (Auditor General) v. British Columbia (Attorney General),

 

2013 BCSC 98

Date: 20130129

Docket: S117635

Registry: Vancouver

Between:

Auditor General of British Columbia

Petitioner

And

Her Majesty the Queen in Right of the Province of British Columbia

as Represented by the Ministry of the Attorney General,

Sandra Harper, Robert Jones, Udhe Singh Basi,

Bobby Singh Virk, John Doe and Jane Doe

Respondents

And

John van Dongen

Intervenor

Before: The Honourable Chief Justice Bauman

Reasons for Judgment

Counsel for the Petitioner:

Louis J. Zivot

Melanie J. Harmer

Counsel for the Respondent

Ministry of Attorney General:

George Copley, Q.C.

Richard Butler

In Person, Respondent Sandra Harper:

Sandra J. Harper

Counsel Assisting Respondent Bobby Virk:

Kevin McCullough

Counsel for Intervenor John van Dongen:

Roger D. McConchie

Amicus Curiae:

Michael Frey

Susan E. Ross

William J. McFetridge

Place and Dates of Hearing:

Vancouver, BC.

September 10-14 and

December 3, 2012

Place and Date of Judgment:

Vancouver, B.C.

January 29, 2013


 

I.        BACKGROUND

[1]             As in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, the Court is once again called upon to resolve a conflict between a government authority’s right to access information in purportedly carrying out his statutory mandate and the solicitor-client privilege of third parties touched by the investigation.

[2]             Here, the tension arises in the context of the so-called Indemnities Performance Audit being undertaken by the Office of the Auditor General of British Columbia (the “Auditor General”), under the Auditor General Act, S.B.C. 2003, c. 2 (the “AGA”).

[3]             The Indemnities Performance Audit was born of the controversial decision by the government of this province to waive the repayment of legal fees incurred by those charged in R. v. Basi, 2010 BCSC 1622. However, the audit is not limited to that case; it looks at the process of the government providing indemnification for the payment of legal fees in approximately 100 cases in this province since 1999.

[4]             Lawsuits are sometimes brought against government employees and officials in the course of their employment or service. Government often provides legal fees indemnification protection for employees as part of the terms and conditions of their employment. The collective agreements between government and various bargaining units define the terms and conditions of indemnity protection for included employees. The Auditor General’s written submissions describes the process for other employees and appointees:

41.       For excluded employees and Order in Council appointees in categories A and B, section 73 of the Public Service Agency’s terms and conditions for excluded employees had, until new regulations were deposited on March 30, 2012, defined the terms and conditions of indemnity protection (the “PSA Indemnity Policy”). Order in Council appointees in categories C and D were not covered by the PSA Indemnity Policy.

42.       The PSA Indemnity Policy provided, in part, that where an employee/appointee is sued for anything done or omitted to be done in the course of his or her office or employment, other than defamation, and the Ministry of Attorney General provides the Government with a legal opinion that the employee/appointee’s conduct was within his or her office or course of employment and was in good faith, the Ministry of Attorney General shall defend the lawsuit and the Government shall indemnify the employee/appointee against the expenses of the defence and any settlement reached or judgment awarded.

43.       The PSA Indemnity Policy provided for additional tests to determine eligibility for coverage in defamation cases. Criminal matters were not covered under the PSA Indemnity Policy.

44.       Since the institution of these proceedings new regulations have been promulgated dealing with the granting of indemnities to excluded Government employees. The new Excluded Employees (Legal Proceedings) Indemnity Regulation passed under the authority of the Financial Administration Act now sets out the terms and conditions of indemnities provided to excluded employees as defined in the Excluded Employees Indemnity Protection Regulation.

45.       There is now, by virtue of these new regulations, a regulatory framework for indemnities granted to excluded employees. This new framework grants coverage under the authority of the Financial Administration Act, rather than under the terms of the PSA Indemnity Policy established under the authority of the Public Service Act.

[5]             The government has also provided indemnities on a discretionary basis to individuals who were not covered by a collective agreement or the PSA Indemnity Policy (“Special Indemnities”).

[6]             As noted, the government has provided Special Indemnities on approximately 100 occasions since 1999. Prior to 30 March 2012, Special Indemnities issued to individuals under the authority of s. 72 of the Finance Administration Act, R.S.B.C. 1996, c. 138, were not covered by an established government policy (such as the PSA Indemnity Policy). It is these ad hoc Special Indemnities that are the focus of the Indemnities Performance Audit.

[7]             The Auditor General describes the various ways in which the Special Indemnities have worked in his written submissions:

25.       Special Indemnities typically obliged the Government to retain and pay for a lawyer for the indemnified person through a legal representation agreement (“LRA") between the Government and lawyer. Pursuant to an indemnity agreement and LRA, the lawyer retained for the indemnified person typically submitted statements of account, signed and certified by their client, to a named Government lawyer who reviewed the accounts and arranged for payment of the appropriate amounts to the lawyer. (Government Response, paras. 44-47; Butler Affidavit #1, para. 2)

26.       Some LRAs have required the lawyer for the indemnified person to provide redacted accounts to the Government for payment. (Government Response para. 30; Butler Affidavit #1, para. 2., Ex "D", ss. 5.04 and 14.01(2), Ex "G", ss. 6.03 and 6.04; Romeo-Beehler Affidavit #1, Ex "O", ss. 5.04 and 14.01(2), Ex "P", s. 14(1))

27.       In some instances (particularly in relation to older indemnities) unredacted accounts were provided to Government and the indemnified person then certified that he or she had received the legal services described in the account. (O'Donnell Affidavit # 1, paras. 9 to 11, Ex "B-3" and "C-3")

28.       In certain instances, the Government also entered into a review agreement with an independent lawyer for him or her to review the legal accounts of the lawyer for the indemnified person. When an independent review arrangement was in place the reviewer certified the amount of fees and disbursements and the Government received the Certificate, a redacted account and supporting disbursement invoices. (Petition, para. 101; Dodds Affidavit #1, para. 2; Government Response, paras. 27-28, Butler Affidavit #1, para. 2). The provisions in the reviewer agreements are discussed in more detail in Parts III.B and III.E of this Argument.

29.       Although only a limited number of Special Indemnities have involved review agreements, two of those concerned the legal defence expenses of the respondents Udhe Singh (Dave) Basi and Bobby Singh Virk in criminal proceedings against them (the Basi/Virk Criminal Proceedings). The Petitioner's initial interest in Special Indemnities was in relation to the defence legal expenses paid for by the Government respecting the Basi/Virk Criminal Proceedings. (Butler Affidavit #1, Ex "H"; Romeo-Beehler Affidavit #1, Ex "L", paras, 34-35 (Reasons of Greyell J.))

[8]             The Auditor General announced the Indemnities Performance Audit in July 2011. According to his submissions:

52.       The Indemnities Performance Audit will consider the effectiveness of the system or framework governing the granting and administration of Special Indemnities and whether the terms and conditions of the indemnities granted by Government have been complied with. The audit will consider if access to, administration of, and reporting on the indemnities are undertaken in a fair and transparent way.

53.       The Auditor General has concerns over an apparent lack of adequate controls over the public funds expended under the authority of Special Indemnities, as well as an apparent lack of transparency around the decisions made about who receives the indemnity and the extent of the obligations assumed.

54.       In order to conduct the Indemnities Performance Audit, the Auditor General requires access to all information, including billing information, that relates to all Special Indemnities. In that some of the information sought may be subject to a claim of solicitor-client privilege on behalf of the individual indemnitees, the information has not been provided to the Auditor General by the Ministry of Attorney General except where the indemnitee has provided a consent or waiver allowing access.

[9]             The Auditor General from the outset has taken the view that his constating statute gives him the authority to access all relevant documents (and persons) without limitation, in particular, regardless of the fact that the targets might enjoy solicitor-client privilege in the documents or other evidence pursued.

[10]         When I use the phrase “solicitor-client privilege” in these reasons, I am referring to legal advice privilege (see Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319).

[11]         While apparently wishing to co-operate in the Indemnities Performance Audit, the government has been properly cautious in ensuring that any privilege enjoyed by third parties is appropriately respected.

[12]         In respect of the Basi and Virk documents which the Auditor General has pursued, including, but not limited to, unredacted legal invoices from their defence lawyers, and access to the independent reviewers (the respondents Ms. Harper and Mr. Jones), who reviewed those accounts, this led to proceedings in this Court. The matter came before Greyell J. He concluded (2011 BCSC 1064) that Mr. Basi and Mr. Virk had waived privilege over the materials then in the hands of the government. In the result, he ordered the government and its counsel (Mr. Richard Butler) to produce to the Auditor General all information, records, etc. in the government’s custody or possession relating to the indemnification of Mr. Basi and Mr. Virk’s legal fees in their prosecution. This included the redacted accounts and disbursement receipts provided with the reviewers certificates.

[13]         I note parenthetically that Mr. Butler initially indicated that the certificates from the reviewers did not attach the actual legal accounts, redacted or otherwise. In this he was in error. He corrected the error in an affidavit filed later in these proceedings. Much was made of this about-face in the media but, as predicted by some, while regrettable, it makes little difference to my disposition of these applications.

[14]         In addition, four potential witnesses in the Basi/Virk prosecution who had also been indemnified by the government waived privilege in respect of information and documents in the possession of government concerning their respective Special Indemnities. Two of these potential witnesses also gave the Auditor General access to all materials in the possession of their reviewers (which would include unredacted accounts and receipts).

[15]         Messrs. Basi and Virk, however, have continued to assert their privilege in respect of documents in the possession of their reviewers. That, and the fact that the Indemnities Performance Audit includes desired access to the files of counsel for all recipients of Special Indemnities, has led to these proceedings.

[16]         Here, the Auditor General seeks this primary relief:

1.         A declaration that the Petitioner is, for the purpose of exercising his powers and duties under the Auditor General Act, and in particular pursuant to section 16 of that Act, entitled to access to all records, information and any explanations from the Government of the Province of British Columbia (the “Government”) and all other persons or organizations within the scope of the auditing powers of the Petitioner, notwithstanding that such records, information or explanations may be subject to a claim of privilege or confidentiality in favour of the Government, Cabinet, or a third party.

[17]         In respect of the reviewer Ms. Harper (similar access was sought from Mr. Jones) the Auditor General seeks:

3.         An order that the Respondent Sandra Harper (“Harper”) for the purposes of the Indemnities Performance Audit give access to the Petitioner to all records and information in her custody or possession and provide explanations, where requested by representatives of the Office of the Auditor General, relating to the approval, administration and funding of indemnities granted by the Government with respect to the legal defence of the Respondents Udhe Singh (Dave) Basi ) (”Basi”) and Bobby Singh Virk (“Virk”) in criminal proceedings brought against them related to their employment with the Government and tried in the Supreme Court of British Columbia, Vancouver Registry, docket No. 23299 (the “Basi/Virk Criminal Proceedings”).

[18]         On application of the government, I appointed an Amicus Curiae in these proceedings, Mr. Michael Frey. Efforts were then made to contact the other recipients of Special Indemnities who were not yet represented in these proceedings, but whose interests were obviously affected by the broad relief sought by the Auditor General. Thirty-three third party indemnified persons have now waived their solicitor-client privilege over information held by government in respect of their Special Indemnities.

[19]         Clearly, the Auditor General now has considerable material affecting sundry recipients of Special Indemnities; but he pursues the broad relief that I have described.

[20]         The government has made limited submissions before me, as has the reviewer Ms. Harper. In pre-trial proceedings, I granted intervenor status to John van Dongen, a member of the Legislative Assembly who has a strong interest in these matters. Through Mr. Roger McConchie, he has made thoughtful submissions essentially supporting the position advanced by the Auditor General.

[21]         The Amicus, in turn, has addressed the issue surrounding third party solicitor-client privileged information and records in relation to Special Indemnities given by government for the payment of legal expenses for those whose privilege has not been waived to permit access by the Auditor General. The Amicus did not address the issues of Cabinet or public interest privilege or confidence. In respect of these issues, the Auditor General pursues the requested relief notwithstanding the fact that government has provided all relevant documents potentially subject to this privilege in these matters.

[22]         I now turn to the central issues. I will proceed first to briefly summarize the positions of the parties; I will then discuss the legislative scheme; next I will deal at some length with the alleged need for the broad relief sought by the Auditor General. Here I will canvass the expert evidence offered on prevailing Canadian Institute of Chartered Accountants (“CICA”) auditing standards. Finally, I will analyze the relief sought in the context of the cases.

[23]         Before I do so, however, I state my conclusion: here, as in so many other cases of conflict between other values and the principle of solicitor-client privilege, the privilege must be protected; it must prevail against abrogation by inference. Solicitor-client privilege, as the case law repeatedly reminds us, is fundamental to the proper functioning of our legal system. It is virtually an absolute privilege and must remain so. Properly understood, the privilege does not act as a shield, obscuring from view matters that should be publically aired. But that is the reaction of many in this contest between those who assert the privilege and the Auditor General in his quest for “transparency” and “accountability”.

[24]         Solicitor-client privilege is not a lawyer’s “trick” to avoid proper scrutiny of her client’s conduct or the steps taken on his or her behalf during the retainer, it is a critical civil right. All citizens must be able to freely discuss their legal positions with their lawyers and to take frank advice thereon, secure in the knowledge that this relationship - that between solicitor and client - is as sacred as any secular business relationship can be.

[25]         It would be wrong to conclude that the result in this case represents the triumph of secrecy over transparency and accountability. It rather represents the reaffirmation of a principle which is a cornerstone value in our democracy and which has been so for hundreds of years. While the privilege may be abrogated by legislation, clear and unambiguous language doing so is required and even then the legislation must be consistent with the Charter.

II.       POSITIONS OF THE PARTIES

[26]         I turn to outline the positions of the parties. I do so against the backdrop of the principle statutory provisions before me, ss. 16 and 17 of the AGA:

Access to information, documents or things

16        Despite any other enactment, the Auditor General, in the conduct of the Auditor General's duties, must be given access to records, information and any explanations required from a person or organization for the Auditor General to exercise the powers and perform duties of the Auditor General.

Summons and requests

17 (1)   The Auditor General may

(a)        summons the attendance of witnesses,

(b)        request that witnesses give evidence on oath or in any other manner, and

(c)        request that witnesses produce records, securities and things

for the purposes of section 11 or of an examination undertaken under section 13.

(2)        A witness is liable, on application to the Supreme Court by the Auditor General, to be committed for contempt as if in breach of an order or judgment of the Supreme Court if the witness

(a)        is summonsed as described in subsection (1) (a), and

(b)        fails or refuses to attend or to take an oath described in subsection (1) (b).

(3)        If a witness receives

(a)        a request described in subsection (1) (b) and fails or refuses to give evidence as requested, or

(b)        a request described in subsection (1) (c) and fails or refuses to produce records, securities and things in the witness's custody or possession as requested,

the Auditor General may apply to the Supreme Court for an order that the witness comply with the request.

(i)       The Auditor General

[27]         It is submitted by the Auditor General that his office is a key component in a properly functioning Westminster-style democracy. The Auditor General is the auditor of the financial statements of the province of British Columbia, each government ministry and each fund or appropriation that is part of the province’s consolidated revenue fund. He is an officer of the legislature and according to him:

3.         In that role the Auditor General, often referred to as a “public watchdog”, provides independent scrutiny of the use of public monies and provides independent opinions to the Legislative Assembly as to whether public monies are spent in an economical, efficient and effective manner.

[28]         The Auditor General submits, quite simply, that unless the relief sought is granted, he will be unable to fulfill his mandate of properly advising and informing the Legislative Assembly as to the amount and propriety of public expenditures and whether public monies, in the case of the Special Indemnities, have been used in an economical, efficient and effective manner.

[29]         The Auditor General continues:

13.       Although arising in the context of a particular audit, the issues raised in this Petition are not unique to the audit described in the Petition. Rather, the issues and the relief sought concern the fundamental role of the Auditor General as an officer of the Legislature. The ruling in this case has the potential to have broad effect on not only the role of the Auditor General in British Columbia, but on other Auditors General across Canada and internationally and on auditors’ functions generally.

[30]         The Auditor General stresses the breadth of the access to “records, information and any explanations required” accorded him by s. 16 of the AGA. But he hastens to add that such access does not mean that such records will necessarily be disclosed further, as he is bound by the confidentiality provisions in the AGA and his self-imposed “Guidelines for Potential Disclosure Under s. 9(a) of the Auditor General Act” (the “Guidelines”).

[31]         Essentially, the Auditor General submits that the broad words of s. 16 of the AGA must be given their ordinary meaning and be construed as extending to material and persons otherwise the subject of solicitor-client privilege and public interest immunity because such access is required if the Auditor General is to properly do his job.

(ii)      The Amicus Curiae

[32]         The Amicus joins issue on virtually every aspect of the Auditor General’s case. He summarizes his position at paras. 1 and 6 of his written submissions:

1.         The Petition seeks to give the Petitioner generalized, blanket and routine access to all solicitor client privileged information and records he wishes to access in relation to any exercise of his statutory powers. Although the Petitioner’s Indemnities Performance Audit triggered this proceeding, the relief he seeks is not limited to that audit, or to government or government organizations. On the basis of non-specific statutory language, the Petitioner (Petition, Part 1, para. 1) seeks a declaration permitting routine access from the Government of the Province of British Columbia and “... all other persons or organizations within the scope of the auditing powers of the Petitioner”. This would include individuals and their private lawyers.

...

6.         The Petitioner’s arguments for routine authority to pierce Government and third party privilege any time and anywhere he undertakes an examination or audit, strip solicitor client privilege of its special status and importance in our legal system. They are quite simply a denial of the governing law.

[33]         The Amicus relies heavily on the Supreme Court of Canada’s decision in Blood Tribe, and forcefully argues that the Auditor General’s reliance on the general language of s. 16 of the AGA for access to information and materials subject to solicitor-client privilege turns the law on its head. Look not for words limiting access to such materials, look rather for words expressly authorizing it, the Amicus essentially submits. The law, he says, is totally opposed to the abrogation of the fundamentally important principle of solicitor-client privilege by inference.

[34]         The Amicus counters the Auditor General’s “absolute necessity” argument with the evidence of his expert, Mr. Strelioff, a former Auditor General of this province, who suggests that the wholesale access to privileged materials prayed for by the Auditor General is not necessary for the purposes of an audit undertaken in accordance with CICA standards.

[35]         The Amicus further pursues an alternative (or, in effect, a sidebar) submission to the effect that the Auditor General does not have jurisdiction under his legislation to conduct a performance audit in respect of the Special Indemnities.

(iii)     HMTQ BC

[36]         This respondent does not lead argument to maintain third party solicitor-client privilege as a limit on access to material and information under the AGA. It points out its disclosure to date:

2.         In particular, the Government

(a)        has waived as against the Auditor General and his office the Government's own solicitor-client privilege in the documents, records, securities, things and/or information or communications (individually or collectively, the "Documents") sought by the Auditor General;

(b)        has waived as against the Auditor General and his office Cabinet privilege or confidentiality relating to the process of amendment of the Government's indemnity policies, and has searched for and delivered all Documents identified to date in that regard;

(c)        has repeatedly advised the Auditor General that it is willing to provide him and his office with access to all Documents potentially subject to third party solicitor-client privilege as soon as issues in that regard are resolved, and

(d)        advised the Auditor General that the Attorney General intended to commence its own proceedings under section 2 of the Attorney General Act for a Court declaration to allow it to do so.

[37]         In the end, the government submits that in these matters of access to documents in the course of what can be conflicting mandates, “co-operation should be the rule and litigation the exception”.

(iv)     Sandra Harper

[38]         Ms. Harper is in substantial agreement with the submissions of the Auditor General. In particular, she notes the Auditor General’s submission that he cannot simply rely on the work of the independent reviewers for the purpose of his review; that he must have access to the unredacted invoices and the independent reviewers. Ms. Harper submits that “these paragraphs make sense to me”.

[39]         In the end, Ms. Harper does not oppose the granting of the relief claimed by the Auditor General but urges:

... that careful consideration be given to any terms that will protect the privilege and yet still allow the Auditor General to conduct a full and complete audit consistent with his statutory mandate.

[40]         I note, however, as I will discuss below in my review of the cases, that the access sought by the Auditor General here represents a complete breach of the solicitor-client privilege enjoyed by the third parties. One cannot “protect the privilege” very effectively in light of this initial breach.

(v)      John van Dongen

[41]         Mr. van Dongen supports the submissions of the Auditor General. He stresses the important role of the Auditor General in assisting members of the Legislative Assembly in their efforts to ensure transparency and accountability in the expenditure of public funds. Mr. van Dongen urges a purposive analysis of the provisions of the AGA. At para. 25 of his submissions, he says:

25.       The Intervenor respectfully submits that a purposive analysis of the Auditor General Act will support the interpretation that the Auditor General is entitled to access to the lawyer’s bills paid pursuant to the legal fee indemnity agreements at issue in this case. The clear purpose of the Auditor General Act is to enable the Legislature to receive complete, reliable and timely information about government expenditures of public funds, including expenditures relating to indemnities, so that the principles of transparency and accountability involved in our system of “responsible government” are fully respected.

[42]         Mr. van Dongen makes an interesting submission based on s. 70 of the Legal Professions Act, S.B.C. 1998, c. 9. That section permits the “person charged or a person who has agreed to indemnify that person” to pursue the review of an account for legal services. Mr. van Dongen submits (at para. 51 of his submissions):

51.       It is respectfully submitted that it would be anomalous and absurd, having regard to the government’s entitlement to compel a review of an indemnified person’s legal bills in a public court process by a judicial officer, to give a narrow interpretation of the Auditor General Act which would prevent him from having access, under the conditions of confidentiality prescribed by section 16 of his statute, to the very same legal invoices which would be attached to a public court filing.

(vi)     Mr. Virk

[43]         Although Mr. Virk was represented by counsel for parts of the pre-trial hearings, he was not present at the actual hearing. By letter to the Court dated 30 November 2012, he formally advised that he adopted “both the written and oral submissions of the amicus curiae, Michael Frey, in all respects”.

[44]         Neither Mr. Jones nor Mr. Basi appeared on the hearing of the petition.

III.       THE LEGISLATIVE SCHEME

[45]         As I have noted, the Auditor General is an officer of the legislature (AGA, s. 2). By s. 10, he is the auditor of the “government reporting entity”. This latter phrase is defined (and the definition is incorporated by reference) in the Budget Transparency and Accountability Act, S.B.C. 2000, c. 23:

"government reporting entity" means

(a)        the government as reported through the consolidated revenue fund,

(b)        government corporations other than those that are government corporations solely by reason of being under an Act agents of the government, and

(c)        education and health sector organizations,

and includes

(d)        each of the corporations or organizations that, under generally accepted accounting principles, is considered to be controlled by a government organization, and

(e)        corporations and organizations that are included within the government reporting entity by regulation under section 24 (2) (d) (i)

but does not include corporations and organizations that are excluded from the government reporting entity by regulation under section 24 (2) (d) (i);

[46]         Of relevance here, s. 10(2)(c) of the AGA provides that the Auditor General is the auditor of each “fund or appropriation that is part of the consolidated revenue fund” (the “CRF”). The monies funding the Special Indemnities are an appropriation from the CRF.

[47]         An “audit” under the Act is defined in s. 2 as “an audit conducted in accordance with generally accepted auditing and assurance standards”.

[48]         Importantly, s. 10(12) of the AGA provides that in s. 10 (except in s. 10(2)), “auditor” means an auditor of financial statements. This latter role is more limited than the second role of the Auditor General in undertaking so-called performance auditors or “value for money” audits.

[49]         By s. 11(1), the Auditor General must report to the Legislative Assembly each year, in accordance with generally accepted auditing and assurance standards, on the financial statements of the “government reporting entity”.

[50]         By s. 11(6), the Auditor General may audit an individual or organization in relation to an indemnity given by government, but pursuant to s. 11(7), that audit must be limited to determining whether the terms and conditions of the indemnity have been fulfilled. One must recall, however, that this “audit” is not subject to the limited scope contemplated by s. 10(12) of the AGA.

[51]         Section 11(8) is the primary source of the Auditor General’s authority to conduct performance audits, which, at their heart, examine whether in respect of a particular matter, the government is operating economically, efficiently and effectively. It provides:

Mandate

(8)        The Auditor General must report to the Legislative Assembly one or more times each fiscal year of the government and call attention to anything resulting from the work undertaken to exercise the powers and perform the duties of the Auditor General that the Auditor General considers should be brought to the attention of the Legislative Assembly, including any assessments concerning whether

(a)        financial and administrative provisions of Acts and regulations under those Acts have been complied with,

(b)        the government, a government organization or a trust fund is operating economically, efficiently and effectively,

(c)        the procedures established by the government, government organizations or trust funds to measure and report on the effectiveness of their programs are adequate and complied with,

(d)        the accountability information provided to the Legislative Assembly by the government, government organizations and trust funds with respect to the results of their programs is adequate,

(e)        the terms and conditions applied in respect of a grant, a transfer under an agreement, an advance of money, a loan, a guarantee for the performance of an obligation, or an indemnity given by the government, a government organization or a trust fund to any individual or another organization have been complied with, and

(f)         the terms and conditions applied in respect of a collection of money on behalf of the government, a government organization or by or on behalf of a trust fund have been complied with.

[52]         Section 13 appears to buttress the Auditor General’s authority to conduct performance audits. It accords the Auditor General the discretion to undertake an “examination”:

Other examinations

13 (1) The Auditor General may undertake an examination

(a)        respecting government, a government organization or a trust fund, or

(b)        in relation to a grant, a transfer under an agreement, an advance of money, a loan, a guarantee for the performance of an obligation, or an indemnity given by the government, a government organization or a trust fund.

[53]         “Examination” is not a defined term and one must presume that it is a broader, or at least a different, undertaking than an “audit” and certainly a broader undertaking than an audit of financial statements.

[54]         I have already reproduced the powers in ss. 16 and17 for the Auditor General to access information. The Auditor General owes a duty of confidentiality in respect of such information. It is cast in these terms in s. 9 of the AGA:

Confidentiality

9          The Auditor General, or a person appointed or engaged under section 8, must keep in confidence all information obtained in the exercise of a power or in the performance of a duty of the Auditor General and must not communicate this information to any person except

(a)        in the course of the administration of an enactment, or

(b)        in court proceedings.

[55]         It is convenient here to deal with the submission of the Amicus to the effect that the Auditor General does not have the authority to conduct the Indemnities Performance Audit. Although this submission is quite nuanced, it is essentially summarized in this paragraph of the Amicus’s submissions:

11.       Section 13 has its own reporting provision in s. 13(4): “A summary of the findings [not an opinion or an audit] ... resulting from examinations undertaken under subsection (1) must be reported each year...”  This reporting provision does not speak to the “assessments” set out under s. 11(8) and, in particular, there is no provision authorizing or requiring a report as to whether the audited entity is operating “economically, efficiently and effectively”. So if the Petitioner resiles from s. 11(6) and relies on s. 13(1), it is not clear that he is authorized to present a “value for money” report.

[Emphasis in the original.]

[56]         Because of the conclusion I have reached on the essential issue before me, that is, the scope of the s. 16 power, it is not necessary to decide this point. However, I observe that while the examination of the indemnity from the perspective of a recipient may be limited by s. 11(7) to the Auditor General determining whether the “terms and conditions ... of ... an indemnity ... have been fulfilled”, it seems clear that the Auditor General enjoys a wide power to examine and audit the government side of the arrangement under at least s. 10(2) and s. 11(8), and to assess whether it is, in respect of the Special Indemnities, operating economically, efficiently and effectively.

[57]         In this regard, I disagree with the submission of the Amicus to the effect that s. 10(2) is not empowering and “that it is only an appointment provision”. I conclude that the Auditor General’s appointment as the “auditor” of a “fund or appropriation that is part of the consolidated revenue fund” is empowering by definition; that being “appointed an auditor” impliedly confers on him the power to “audit” as that term is defined in the AGA.

IV.      NEED FOR RELIEF

[58]         The Auditor General forcefully submits that his absolute need for the materials and evidence subject to third party solicitor-client privilege, in the pursuit of his statutory mandate, dictates an interpretation of the s. 16 power consonant with his office having the powers to achieve that mandate.

[59]         This leads me to a consideration of the evidence of Ms. Sheila Dodds from the perspective of the evidentiary objection asserted by the Amicus. He objects to the admission into evidence of Ms. Dodds’ adoption “as true” of paras. 19, 20, 22, 28, 30, 32, 35, 41, 42, 53, 56-59, 70, 71 and 77 of Part 2 of the Petition. The tenor of many of these paragraphs is summarized in para. 35, which effectively suggests that the access prayed for is required for a CICA Standards compliant audit. Ms. Dodds is the Assistant Auditor General, Performance Audit in the Office of the Auditor General.

[60]         The Amicus objects to these paragraphs as expert evidence tendered without compliance with Rule 11-2 (requiring certification by the expert that she is aware of her duty to assist the Court and not be an advocate for any party) and Rule 11-6 (setting out the formal requirements for expert evidence) of the Supreme Court Civil Rules.

[61]         I disagree that paras. 19, 20, 32 and 41 suffer from these defects, but find that the remaining paragraphs noted by the Amicus do.

[62]         I will read these paragraphs as an expression of Ms. Dodds’ views on the needs for an effective audit here, but I will not accord them the weight of a disinterested expert’s opinion.

[63]         I turn to the two expert opinions which I do have properly before me, that of Mr. Selman tendered by the Auditor General, and that of Mr. Strelioff tendered by the Amicus.

[64]         I will deal first with the evidence of Mr. Strelioff.

[65]         Mr. Strelioff is a chartered accountant with extensive experience in public sector accounting and auditing. From 1990 to 2000, he served as the Provincial Auditor of Saskatchewan. From 2000 to 2006, he served as the Auditor General of British Columbia.

[66]         In his report, he has provided a pithy summary of his opinion which I reproduce:

2.         In his Petition, the Auditor General states he is carrying out a performance audit to assess the Government's management of Special Indemnities. He thinks his assessment will provide useful information to the Legislative Assembly.

3.         In his Petition, the Auditor General states he is unable to obtain some of the information (evidence) required to fully assess all relevant aspects of the Government's management of Special Indemnities. The unobtainable information relates to information which may be subject to solicitor client privilege of a third party (not the Government).

4.         He explains the effect of his inability to obtain information in terms of his legal authority and in terms of what he must do to carry out his audit in accordance with Generally Accepted Auditing and Assurance Standards (Standards).

5.         In performance audits, Auditors General frequently encounter difficulties in obtaining all or some of the information required to assess fully the aspect of performance being examined. For example, Auditors General encounter difficulties obtaining information provided to Cabinet.

6.         When encountering difficulties in obtaining required information, Auditors General will explore alternative methods of obtaining the information. For example, they may seek similar information from another source or of another type, they may seek advice of professional colleagues or they may explore similar experience in past audits. They may also explore methods for using anonymized information or records.

7.         Standards direct Auditors General to ensure the conclusions they express about performance are supported by sufficient, appropriate evidence. When an Auditor General is unable to obtain all of, or some of, the required evidence, Standards direct him or her to explain in the audit report the extent to which the lack of evidence effects his or her planned assessment of performance. He or she may also decide to explain why required evidence is unobtainable.

8.         In my opinion and with reference to paragraphs 35 and 59 of the Petition, an Auditor General's difficulty in obtaining information does not prevent him from complying with Standards. He is directed by, and complies with, Standards by explaining in his audit report to the Legislative Assembly, the effect of his inability to obtain required information or evidence on his or her findings and conclusions.

9.         During an audit or subsequent to an audit, an Auditor General may think he or she is likely to encounter similar difficulty in future audits, i.e., difficulty with gaining access to or obtaining certain types of information, such as third party solicitor client privileged information. In addition to reporting his difficulty with access to evidence, he or she may decide, using judgment and experience, to take specific action to address the difficulty. For example, in my opinion, an Auditor General may decide to:

a.         Ask the Government to work with him on developing a process by which he is able to obtain all, or most of, the information he seeks either directly or indirectly. The process might include consultations with the Law Society, relying on the opinions of experts, assessing whether certain sensitive information is relevant to the audit, ensuring sensitive information is carefully protected or not disclosed inadvertently, and/or ensuring administrative fairness.

b.         Ask the Legislative Assembly to direct the Government to provide the privileged information. This request may be considered by legislators in a meeting of the Standing Committee on Public Accounts.

c.         Ask the Court to confirm his authority to obtain the privileged information and to order those with the information to provide it to the Auditor General. The Auditor General is taking this action as set out in his Petition.

d.         Ask the Legislative Assembly to amend the Auditor General Act to specifically and explicitly state the Auditor General has the authority to obtain third party solicitor client privileged information.

10.       In this Report, I outline the alternative methods that Standards contemplate when evidence is unobtainable. However, when the Auditor General thinks he has exhausted those alternatives, he may take one or more of the above actions. In my opinion, none of these actions affect the Auditor General's ability to comply with Standards. However, they may affect, limit or impair his ability to serve the Legislative Assembly.

[67]         One must weigh the Auditor General’s position to the effect that access to privileged documents is virtually an absolute necessity for a proper audit under the AGA, with Mr. Strelioff’s view (at para. 16 of his report):

16.       Both Auditors General and private sector auditors must use considerable professional judgment to determine how best to apply the Standards to particular circumstances. For example, auditors know absolute assurance is not attainable in an audit. Accordingly, both types of auditors perform the work they judge required to provide a high, though not absolute, level of assurance in order to limit the risk of an inappropriate conclusion. The goal is to reduce risk to the lowest level practicable. Absolute assurance is not attainable due to factors such as: the nature of the subject matter examined; the use of judgment; the use of testing; the inherent limitations of control; and the fact that much of the evidence available is persuasive rather than conclusive in nature.

[68]         The fact that in an audit “absolute assurance is not attainable” and “the goal is to reduce risk [of an inappropriate conclusion] to the lowest level practicable” are important considerations here, especially in light of the fact that the Auditor General has access, on a voluntary disclosure basis, to extensive materials otherwise subject to the solicitor-client privilege of many third party recipients of Special Indemnities.

[69]         I turn to Mr. Selman’s report. Mr. Selman, while very well qualified and extremely experienced, lacks Mr. Strelioff’s very relevant experience as an auditor general in the public sector. Mr. Selman’s extensive private sector auditing experience explains the fact that much of his opinion concentrates on these audits. While auditors of public companies undoubtedly have some access to a client’s privileged material, it is not clear whether this is not simply the result of the client waiving that privilege as part of the retainer. And this type of audit is very different from one in which a third party’s solicitor-client privilege is at stake.

[70]         Where the third party solicitor-client privilege is routinely intruded upon in examples given in Mr. Selman’s commentary, it is in the context of Law Society audits of lawyers’ practices. This is a discrete sector in this debate and I will return to it below in my discussion of the cases.

[71]         In general, I found Mr. Selman’s evidence to be non-committal on the central thrust of Ms. Dodds’ assertion that access to privileged materials is absolutely necessary in the case of an auditor general’s performance audit like that at bar. For example, I have already noted para. 35 of Part 2 of the Petition. Again, it states:

By necessity, and to comply with the CICA Standards, some audits in both public and private sectors require access to confidential and privileged documents.

[72]         Of this assertion, Mr. Selman deposes (at para. 106):

106.     With reference to paragraphs 19 and 35, it is my view that it is in the nature of audits that from time to time an auditor will become privy to information that can be characterized as privileged, including privilege that may exist in favour of a third party. This is not merely a theoretical or hypothetical situation, but rather is a fairly ordinary occurrence, although it does not occur in the majority of audits.

[73]         This is lukewarm support (at best) for the very strong statement that access to privileged documents is a “necessity for compliance with CICA Standards”.

[74]         Although para. 108 of Mr. Selman’s report is a stronger statement on the need to sometimes access privileged information, unlike Mr. Strelioff, Mr. Selman does not opine on the need for compelled access in complying with CICA Standards. Here, I note Mr. Selman’s reference at para. 113 of his report to para. 70 in Part 2 of the Petition. Paragraph 70 states:

70.       These particular categories of documents and information are required by the Auditor General to conduct the Indemnities Performance Audit in accordance with CICA Standards. CICA Standards require that the auditor obtain sufficient appropriate audit evidence to support his conclusions, with a high degree of assurance, regarding whether the terms and conditions of the agreements have been complied with. There must be persuasive evidence in order to reach a high degree of assurance.

[75]         At para. 113 of this report, Mr. Selman states:

With respect to paragraph 70, I agree with the description of the CICA standard as to the nature of sufficient appropriate audit evidence.

[76]         I agree with the Amicus’s submission:

His agreement in para. 113 avoids addressing the first sentence in para. 70. He gives no opinion regarding the assertion on para. 70 that: “these particular categories of documents and information [in para. 68 of the Petition] are required by the Auditor General to conduct the Indemnities Performance Audit in accordance with CICA Standards.”

[77]         In the end, I accept Mr. Strelioff’s opinion and I prefer it over that of Mr. Selman.

[78]         I make one final point on this issue of the necessity for access to third party privileged materials in the public sector auditing process.

[79]         In the new Auditor General for Local Government Act, S.B.C. 2012, c. 5, an auditor general is appointed (s. 2): “to conduct performance audits of the operations of local government.”

[80]         By s. 13(3), persons who have been granted money by a local government in relation to the operations that are subject to the performance audit must give the auditor general:

... access to records, information, things, facilities and works and explanations necessary for the Auditor General to conduct a performance audit.

[81]         However, s. 13(4) provides:

This section applies despite a claim of confidentiality or privilege other than a claim based on solicitor-client privilege.

[Emphasis added.]

[82]         It is interesting to note the legislature’s view that a performance audit in the local government context does not require unfettered access to materials subject to solicitor-client privilege.

V.       ANALYSIS: SOLICITOR-CLIENT PRIVILEGE

[83]         Counsel have been diligent in referring me to all of the leading cases touching on the fundamentally important principle of solicitor-client privilege. But in the end, only a few cases need be specifically noted. I begin, then, with a discussion of three important cases:

·       Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 S.C.C. 61, [2002] 3 S.C.R. 209

·       Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860

·       Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 S.C.C. 44, [2008] 2 S.C.R. 574

[84]         Lavallee, Rackel & Heintz considered the constitutionality of s. 488.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, which set out a procedure for determining a claim for solicitor-client privilege in relation to documents seized from a law office under a warrant. In finding that the provision breached s. 8 of the Charter, the majority (per Arbour J.) discussed the essential importance of the privilege to our legal system, calling it (at para. 36) “a principle of fundamental justice and civil right of supreme importance in Canadian law” and continuing:

Indeed, solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. Accordingly, this Court is compelled in my view to adopt stringent norms to ensure its protection. Such protection is ensured by labeling as unreasonable any legislative provision that interferes with solicitor-client privilege more than is absolutely necessary.

[85]         Descôteaux was decided before Lavallee, Rackel & Heintz. It, too, considered the privilege in the context of a search of a lawyer’s office (there a Legal Aid Bureau). The Court recognized that the principle has evolved to the point where it no longer is simply a rule of evidence; it is a substantive rule of law. And that rule is to be stated as follows (at 875):

1.         The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.

2.         Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be re­solved in favour of protecting the confidentiality.

3.         When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4.         Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

[86]         In the context of our consideration here of the powers of the Auditor General, especially under s. 16 of the AGA, I stress that both paras. 2 and 3 of the Descôteaux test only contemplate the potential breach of the privilege where the law in question so “provides” or “gives someone the authority to do” so. And in construing such “enabling legislation”, the Rules call for a restrictive interpretation.

[87]         This brings us to Blood Tribe. It is the controlling jurisprudence on the issues before the Court.

[88]         Blood Tribe summarizes, and importantly, strongly buttresses, the previous judicial declarations of the fundamental importance of the solicitor-client privilege. I note these paragraphs in Binnie J.’s reasons for the Court:

IV         Analysis

9          Solicitor-client privilege is fundamental to the proper functioning of our legal system. The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer's expert advice. It is said that anyone who represents himself or herself has a fool for a client, yet a lawyer's advice is only as good as the factual information the client provides. Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality "as close to absolute as possible":

[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.

(R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 35, quoted with approval in Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, at para. 36)

It is in the public interest that this free flow of legal advice be encouraged. Without it, access to justice and the quality of justice in this country would be severely compromised. The privilege belongs to the client not the lawyer. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 188, McIntyre J. affirmed yet again that the Court will not permit a solicitor to disclose a client's confidence.

10        At the time the employer in this case consulted its lawyer, litigation may or may not have been in contemplation. It does not matter. While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer when the lawyer is engaged in providing legal advice or otherwise acting as a lawyer rather than as a business counsellor or in some other non-legal capacity: Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 837; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at pp. 885-87; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18, at paras. 40-47; McClure, at paras. 23-27; Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, 2006 SCC 39, at para. 26; Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31; Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, 2006 SCC 36; Juman v. Doucette, [2008] 1 S.C.R. 157, 2008 SCC 8. A rare exception, which has no application here, is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes: Descôteaux, at p. 881; R. v. Campbell, [1999] 1 S.C.R. 565. The extremely limited nature of the exception emphasizes, rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained "as close to absolute as possible to ensure public confidence and retain relevance" (McClure, at para. 35).

11        To give effect to this fundamental policy of the law, our Court has held that legislative language that may (if broadly construed) allow incursions on solicitor-client privilege must be interpreted restrictively. The privilege cannot be abrogated by inference. Open-textured language governing production of documents will be read not to include solicitor-client documents: Lavallee, at para. 18; Pritchard, at para. 33. This case falls squarely within that principle.

[89]         At issue in Blood Tribe was a privacy commissioner’s authority to order production under her enabling legislation of documents over which solicitor-client privilege was claimed.

[90]         Section 12 of the legislation gave the privacy commissioner statutory authority to compel a person to produce any records that the commissioner considered necessary to investigate a complaint “in the same manner and to the same extent as a Superior Court of record” and to “receive and accept any evidence and other information ... whether or not it is or would be admissible in a court of law”.

[91]         The privacy commissioner maintained that this language extended to documents over which solicitor-client privilege was claimed. While s. 9 of the legislation exempted disclosure of documents subject to solicitor-client privilege, the commissioner argued that s. 12 allowed her to order production for the purpose of determining the validity of the claim to privilege.

[92]         Justice Binnie succinctly dealt with that assertion (at para. 2):

It is well established that general words of a statutory grant of authority to an office holder such as an ombudsperson or a regulator, including words as broad as those contained in s. 12 of PIPEDA, do not confer a right to access solicitor-client documents, even for the limited purpose of determining whether the privilege is properly claimed. That role is reserved for the courts. Express words are necessary to permit a regulator or other statutory official to "pierce" the privilege. Such clear and explicit language does not appear in PIPEDA. This was the view of the Federal Court of Appeal and I agree with it. I would dismiss the appeal.

[93]         It is to be noted that from one perspective, the privacy commissioner’s claim for access to documents subject to a claim to solicitor-client privilege, was a limited one - it was for the purpose of verifying the claim for privilege under s. 9(3)(a) of the legislation at bar there. Even access for that limited purpose was subject to the Court’s criticism (see para. 17). Such a verifying jurisdiction is a far cry from the exceedingly broad, indeed untrammeled, access to privileged material which the Auditor General seeks here.

[94]         In Blood Tribe, the privacy commissioner referred to her court-like powers and the fact that courts traditionally review documents to verify a claim of solicitor-client privilege. Justice Binnie responded (at para. 21):

21        I do not accept the validity of the analogy between the Privacy Commissioner and a court in this respect. The Privacy Commissioner is a stranger to the privilege. She argues that because of her independence from the parties her adjudication of a claim of privilege would not be an infringement of the privilege. I do not agree. Client confidence is the underlying basis for the privilege, and infringement must be assessed through the eyes of the client. To a client, compelled disclosure to an administrative officer, even if not disclosed further, would constitute an infringement of the confidentiality. The objection is all the more serious where (as here) there is a possibility of the privileged information being made public or used against the person entitled to the privilege: Lavallee, at para. 44; Goodis, at para. 21; Pocklington Foods Inc. v. Alberta (Provincial Treasurer), [1993] 5 W.W.R. 710 (Alta. C.A.). While s. 12 gives the Privacy Commissioner some court-like procedural powers, she is not a court of law. The words of s. 12(1)(a) confer a power to compel production of

any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record... .

This amounts to a general production provision. In Pritchard, the Court dismissed a similar argument concerning s. 10 of the Ontario Judicial Review Procedure Act. We held that a general production provision that does not specifically indicate that the production must include records for which solicitor-client privilege is claimed is insufficient to compel the production of such records (Pritchard, at para. 35). On the other branch of her argument, the Privacy Commissioner points out that s. 12(1)(c) permits her in the course of exercising her powers of investigation to

(c)        receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

The authority to receive a broad range of evidence cannot be read to empower the Privacy Commissioner to compel production of solicitor-client records from an unwilling respondent. The language of s. 12 is simply incapable of carrying the Privacy Commissioner to her desired conclusion.

[Emphasis in the original.]

[95]         Justice Binnie stressed the general language of the production power in s. 12 and the prohibition against abrogation of the privilege by inference (at para. 26).

[96]         The privacy commissioner noted the breadth of the production powers she enjoyed under the Privacy Act, R.S.C. 1985, c. P-21, and argued that Parliament could not have intended that the commissioner’s “virtually identical powers of investigation” be contradictory as between these constituent pieces of legislation.

[97]         Justice Binnie concluded that the two statutory powers were indeed not the same and the explicitness of the Privacy Act power was to be noted and contrasted with general open-textured language, like the language of s. 16 of the AGA here under review (at para. 28):

28        However, the powers of the Privacy Commissioner under PIPEDA and the Privacy Act are not the same. For present purposes, as observed by the Federal Court of Appeal, it is sufficient to note that PIPEDA does not contain explicit language granting access to confidences such as is found in s. 34(2) of the Privacy Act, R.S.C. 1985, c. P-21:

34. ...

(2)        Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen's Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

[Emphasis added in Blood Tribe.]

[98]         Finally, the Court in Blood Tribe noted that the privacy commissioner enjoyed two alternative remedies which could be pursued in an effort to verify a claim of solicitor-client privilege.

[99]         The Court noted that the privacy commissioner could bring an application to the Federal Court under s. 18.3 of the Federal Court Act, R.S.C. 1985, c. F-7, or an application to Federal Court under her enabling statute. Justice Binnie concluded (at para. 34):

The legislative scheme, thus interpreted, permits the objectives of the PIPEDA to be met while preserving solicitor-client privilege “as close to absolute as possible to ensure public confidence and retain relevance”.

[100]     A similar “privilege verification” procedure in this Court could be resorted to by the Auditor General under s. 17 of the AGA. Of course that may be cold comfort to the Auditor General, as he seeks broad access to privileged material, not confirmation that his access is to be denied in the face of a privilege properly claimed.

[101]     Blood Tribe represents a very formidable obstacle to the Auditor General’s submissions before me.

[102]     Before I turn to the principal cases relied upon by the Auditor General, I wish to discuss cases emanating from Nova Scotia and Newfoundland.

[103]     First, to Newfoundland, where I return to the issue I just highlighted from Blood Tribe, that is whether legislative language supports an officer’s jurisdiction to personally try the validity of a claim for solicitor-client privilege in the face of a provision excusing the disclosure of such documents and information.

[104]     In Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2011 NLCA 69, we again find the familiar scheme: a right to be excused from producing material subject to solicitor-client privilege and the question of whether the legislation accords the legislative officer jurisdiction to try the validity of the claim by requiring disclosure to himself or herself.

[105]     Section 21 of the legislation at bar there, provided that the head of a public body could refuse to disclose information “that is subject to solicitor-client privilege”.

[106]     Section 52 of the Newfoundland legislation then provided:

52.(1)   The commissioner has the powers, privileges and immunities that are or may be conferred on a commissioner under the Public Inquiries Act.

(2)        The commissioner may require any record in the custody or under the control of a public body that the commissioner considers relevant to an investigation to be produced to the commissioner and may examine information in a record, including personal information.

(3)        The head of a public body shall produce to the commissioner within 14 days a record or copy of a record required under this section, notwithstanding another Act or regulations or a privilege under the law of evidence.

(4)        Where it is not practicable to make a copy of a record required under this section, the head of a public body may require the commissioner to examine the original at its site.

[107]     Of course I highlight the breadth of disclosure required by s. 52(3): “notwithstanding another act or regulation or a privilege under the law of evidence.”

[108]     The Court referred to Blood Tribe and noted that the restrictive approach mandated there “requires that solicitor-client privilege cannot be abrogated by inference and that open-textured language governing production of documents must be read so as not to include records subject to a claim of solicitor-client privilege”. But, of course, clear, unambiguous legislative language can, subject to the Descôteaux rules and Charter considerations, permit abrogation of the privilege. The Court found such clear and unambiguous language in s. 52 of the legislation and, in particular, s. 52(3) thereof.

[109]     At para. 45, the Court concluded:

45        The relevant portions of section 52 of ATIPPA read, "The commissioner may require any record ... to be produced ... notwithstanding ... a privilege under the law of evidence". The words "notwithstanding ... any privilege under the law of evidence" are sufficiently clear to abrogate solicitor-client privilege, as this is a privilege recognized under the law of evidence. The "law of evidence" is defined in Black's Law Dictionary as "The body of law regulating the admissibility of what is offered as proof into the record of a legal proceeding". Solicitor-client privilege is unquestionably a rule regulating the admissibility of what is offered as proof into the record of a legal proceeding.

[110]     The Court then went on to conclude that looking beyond the words in s. 52, to the context and purpose of s. 52 under the proper approach to statutory interpretation, did not lead to a different result. I note that a similar result obtained in our Court with Butler J.’s decision in Central Coast School District No. 49 v. British Columbia (Information and Privacy Commissioner), 2012 BCSC 427, interpreting the provisions of our Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165.

[111]     All that Newfoundland demonstrates is that the privilege may be abrogated where the legislature uses clear and unambiguous language, and that simply begs the question of whether it has here, in s. 16. Blood Tribe’s admonition against so interpreting open-textured language, against finding abrogation by inference, strongly tells against such an interpretation of the AGA and s. 16 thereof.

[112]     Now, west to Nova Scotia, where the scenario faced by this Court and this Auditor General has more fully played out.

[113]     In 2000, the Nova Scotia Supreme Court (per Wright J.) decided Nova Scotia v. Royal Sun Alliance Insurance Co. of Canada, 189 N.S.R. (2d) 290 (S.C.).

[114]     At issue was whether the provincial government had waived solicitor-client privilege over certain materials voluntarily provided to that province’s auditor general.

[115]     The province, arguing against waiver, submitted that its actions could not be construed as voluntary in light of the Auditor General’s power to compel disclosure under the applicable legislation. The Court held that the legislation did not accord a power to compel the production of solicitor-client privileged documents. That power was cast in these terms in s. 10(1) of Nova Scotia’s Auditor General Act, R.S.N.S. 1989, c. 28:

Notwithstanding the provisions of any other Act, every officer, clerk or employee of an agency of government shall provide the Auditor General with such information and explanation as the Auditor General requires and the Auditor General shall have free access, at all times, to the files, records, books of account and other documents, in whatever form, relating to the accounts of any agency of the government.

[116]     Faced with that conclusion and in an effort to bolster the Auditor General’s power as this controversy developed, the Nova Scotia legislature introduced legislation which positively addresses access to such privileged materials. Nova Scotia’s new Auditor General Act, S.N.S. 2010, c. 33, defines “privileged records” as:

records that are subject to solicitor-client privilege, litigation privilege, settlement privilege or public interest immunity;

[117]     And s. 14(1) provides:

14(1)    Notwithstanding the Freedom of Information and Protection of Privacy Act or any other legislation, and notwithstanding any other rights of privacy, confidentiality or privilege, including solicitor-client privilege, litigation privilege, settlement privilege and public interest immunity, the auditor General has the right of unrestricted access, at all times, to all records of any auditable entity, including the right to copy such records and to any things or property belonging to or used by any auditable entity, and every officer, employee and agent of any auditable entity shall forthwith provide the Auditor General any such information or explanations, or information concerning its duties, activities, organization and methods of operation, that the Auditor General believes to be necessary to perform the Auditor General’s duties under this Act.

[118]     The contrast between this provision and the open-textured language of s. 16 of the AGA is stark. This, in particular, extends to the breadth of the “notwithstanding” clause in the Nova Scotia legislation. Some reliance was placed on the “notwithstanding” clause in s. 16 of the AGA by the Auditor General before me. Section 16 begins so: “Despite any other enactment”.

[119]     It is rather the narrowness of this “notwithstanding” clause that is remarkable. Unlike the Nova Scotia legislation, and other provisions we have seen above, this clause does not expressly extend to “solicitor-client privilege” or “any law of evidence”.

[120]     “Enactment” in s. 16 is defined in the Interpretation Act, R.S.B.C. 1996, c. 238, s. 1, as meaning:

"enactment" means an Act or a regulation or a portion of an Act or regulation;

[121]     “Regulation” is, in turn, defined in the same section:

"regulation" means a regulation, order, rule, form, tariff of costs or fees, proclamation, letters patent, commission, warrant, bylaw or other instrument enacted

(a)        in execution of a power conferred under an Act, or

(b)        by or under the authority of the Lieutenant Governor in Council,

but does not include an order of a court made in the course of an action or an order made by a public officer or administrative tribunal in a dispute between 2 or more persons;

[122]     It tells very much against the Auditor General’s submission on s. 16, that its “notwithstanding” clause does not expressly include solicitor-client privilege or at least “any law of evidence”. If one were to draw an inference, the specificity of “[d]espite any other enactment” would encourage one to say that the more general “notwithstanding” clause - one including rules of common law - is thereby denied. Specificity engrafted on a generality (like the power in s. 16) is the hobgoblin of the petitioner’s argument on this point.

[123]     This is a convenient point to deal with the Auditor General’s argument based on the so-called presumptions that the legislature uses consistent expressions from statute to statute and avoids stylistic variation: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) at 215-216.

[124]     The argument of the Auditor General then proceeds: in various pieces of legislation, the legislature has expressly limited access powers by excepting documents subject to a claim for solicitor-client privilege. The implication is that where no such exception is to be found in s. 16 of the AGA, the noted presumptions would lead one to conclude that an exception for privileged documents was not intended by the legislature.

[125]     For example, in the Auditor General for Local Government Act, already noted, s. 13(4) provides:

This section applies despite a claim of confidentiality or privilege other than a claim based on solicitor-client privilege.

[126]     Similarly, in the Representative for Children and Youth Act, S.B.C. 2006, c. 29, there is a broad duty on public bodies to produce information to the representative under ss. 10(2) and (3). But s. 10(4) provides:

(4)        This section applies despite

(a)        any claim of confidentiality or privilege other than a claim based on solicitor-client privilege, and

(b)        any other enactment, other than a restriction in section 51 of the Evidence Act.

[127]     But the obverse of this submission is much more compelling. It is the argument that an exception for claims based on solicitor-client privilege was only necessary in these provisions because the legislature had first provided that disclosure was required “despite any claim of confidentiality or privilege” and therefore had to so limit the “notwithstanding” clause (as it apparently intended). As I have already noted, s. 16 of the AGA does not contain a “notwithstanding” clause of such breadth.

[128]     My point is made even stronger when we look at the unqualified “notwithstanding” clause in the Freedom of Information and Protection of Privacy Act, where production powers are given the commissioner in s. 44. Section 44(3) provides:

(3)        Despite any other enactment or any privilege of the law of evidence, a public body must produce to the commissioner within 10 days any record or a copy of any record required under subsection (1).

[129]     So, in an application of the so-called presumptions, we see that where the legislature wishes to include in a production power documents subject to solicitor-client privilege, it does so expressly by using words to the effect that production follows “despite ... any privilege of the law of evidence” or phrases to like effect. It has not done so in s. 16.

[130]     At best, all this means is that s. 16 of the AGA is susceptible to a number of interpretations, but in applying Descôteaux, one must adopt the restrictive approach and shun finding an abrogation of the privilege by inference.

[131]     Before I turn to one of the principal authorities advanced by the Auditor General, I will deal quickly with the “Law Society” line of cases, where the powers of various provincial law societies to access solicitor-client materials in the course of the investigation of professional complaints or audits have been upheld. These cases include:

·          Greene v. Law Society of British Columbia, 2005 BCSC 390

·          Hammerberg & Co. v. Margitay, 2001 BCSC 1312

·          Law Society of Saskatchewan v. Merchant, 2008 SKCA 128

·          Skogstad v. The Law Society of British Columbia, 2007 BCCA 310

[132]     The most helpful of these decisions is that of the Saskatchewan Court of Appeal in Merchant. There, access to documents requested in the course of the investigation of a complaint to the Law Society of Saskatchewan was refused on a claim of solicitor-client privilege.

[133]     Access was ordered. The production power in s. 63(1) of the legislation provided:

63(1)    Every member and every person who keeps any of a members’ records or other property shall comply with a demand of a person designated by the benchers to produce any of the member’s records or other property that the person designated by the benchers reasonably believes are required for the purposes of an investigation pursuant to this Act.

[134]     The Court of Appeal referred to the four-part test in Descôteaux and at para. 45 suggested the proper approach to its application:

45        What then is the proper line of analysis in relation to this aspect of the appeal? It seems to me that it is ultimately quite straightforward. First, it must be determined whether the Law Society has the authority to demand the production of records subject to solicitor-client privilege. Second, if the Society has such powers, consideration must be given to whether that authority has been exercised so as not to interfere with privilege except to the extent absolutely necessary. I will examine each of these points in turn.

[135]     Before one considers the minimal impairment of the privilege - viz., has the authority been exercised so as not to interfere with the privilege except to the extent absolutely necessary - one must first determine whether the authority to abrogate the privilege has indeed been granted by the legislative provision in question. In Merchant, the Court concluded that it had been (at para. 48):

48.       This provision does not authorize the Law Society, in so many words, to demand privileged documents. However, in my view, an authority to require production of “any of the member’s records”, found in the unique context of a statute dealing with the regulation of the legal profession, must be taken as referring to documents subject to solicitor-client privilege. Certainly, this Court in Law Society (Saskatchewan) v. Robertson Stromberg, supra, proceeded on the assumption that the Society could demand production of privileged documents. This is consistent with Rule 1003 which, in relation to records produced to s. 63(1) of the Act, imposes obligations to prevent disclosure of “records that are confidential or are subject to solicitor and client privilege”.

[136]     And in doing so, the Court distinguished Blood Tribe because (at para. 49):

It can be readily seen that s. 63(1) stands on quite different ground than the legislation considered by the Supreme Court of Canada in cases where it said the power to limit solicitor-client privilege should not be inferred.

[137]     In my view, the Law Society cases, where access by the regulator to materials otherwise subject to solicitor-client privilege was permitted, are fully explained by reference to the “unique context” of statutes dealing with the regulation of the legal profession. They do not assist the Auditor General here. He exercises auditing powers over a broad range of persons and subjects. There is no inevitability (as with the Law Societies) to his need to access materials subject to solicitor-client privilege. And this is borne out by a consideration of his jurisdiction in general and the expert opinion on auditing of Mr. Strelioff in particular.

[138]     The parties spent much time in submissions debating whether the Auditor General did, in fact, require the untrammelled access to unredacted legal accounts and the lawyers responsible for their issuance or review. I cannot resolve the issue of whether the Auditor General in fact now has sufficient information, by way of voluntary disclosure, to complete this particular audit. What I can do is note and place reliance on Mr. Strelioff’s expert opinion to the effect that “absolute assurance is not attainable in an audit” and:

... an Auditor General’s difficulty in obtaining information does not prevent him from complying with [CICA] Standards. He is directed by, and complies with, Standards by explaining in his audit report to the Legislative Assembly, the effect of his inability to obtain required information or evidence on his or her findings and conclusions.

[139]     What this means is that the Auditor General’s submission that he inevitably requires complete and unfettered access to solicitor-client privileged materials simply to “do his job”, cannot be accepted. Nor can the conclusion then urged (in effect):

Because I absolutely require these materials, the statute must be construed as authorizing such access or one is rendering nugatory the statute of the Legislature.

[140]     This brings us to a case upon which the Auditor General has placed considerable reliance in submissions before the court: Philip Services Corp. (Receiver of) v. Ontario (Securities Commission) (2005), 77 O.R. (3d) 209 (S.C.J.).

[141]     Philip Services was a case which again considered whether the delivery of documents subject to solicitor-client privilege to a company’s auditors amounted to a general waiver of the privilege for the purpose of access to those materials by the Ontario Securities Commission.

[142]     Although the documents were provided voluntarily, there were disclosure requirements for the company set out in Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16 [OBCA]. Sections 153(5) to (7) of that Act provide:

Right of access

(5)        Upon the demand of an auditor of a corporation, the present or former directors, officers, employees or agents of the corporation shall furnish such,

(a)        information and explanations; and

(b)        access to records, documents, books, accounts and vouchers of the corporation or any of its subsidiaries,

as are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under this section and that the directors, officers, employees or agents are reasonably able to furnish.

Furnishing information

(6)        Upon the demand of the auditor of a corporation, the directors of the corporation shall,

(a)        obtain from the present or former directors, officers, employees and agents of any subsidiary of the corporation the information and explanations that the present or former directors, officers, employees and agents are reasonably able to furnish and that are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under this section; and

(b)        furnish the information and explanations so obtained to the auditor.

Idem

(7)        Any oral or written communication under this section between the auditor or former auditor of a corporation and its present or former directors, officers, employees or agents or those of any subsidiary of the corporation, has qualified privilege.

[143]     The company argued that the statute created a compulsion to disclose the privileged documents that belied a voluntary disclosure and hence, could not form the basis for an implied waiver of the privilege. This was an issue considered under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, which contains provisions similar to those noted in the OBCA, in Interprovincial Pipe Line v. M.N.R., [1996] 1 F.C. 367.

[144]     In both Philip Services and Interprovincial Pipe Line, the courts proceeded on the basis that the statutes must be read as requiring disclosure of privileged materials to the auditors. For example, in Philip Services, the Ontario Divisional Court (per Lane J.) stated (at para. 52):

[52]      Accepting the above as the guiding principle, I turn to the case at hand. Auditors, in pursuit of their important public function of ensuring the fairness of the presentation of the accounts of public companies, have the right to obtain whatever documentation they require, which may, as here, involve the production to them of documents as to which the client claims solicitor-client privilege. Auditors are not in the family of the client; they are third parties. Ordinarily the voluntary production of privileged documents to third parties is a waiver of the claim for solicitor-client privilege. Clearly, the auditor must be free to use the documents for the purposes of the audit without limitation. The auditor may ask the client to publish them or a summary of them in a note to the financial statements if that is required for a fair presentation, failing which the auditor, in a serious case, will likely feel obliged to resign, a serious and public event for a company regulated by a securities commission. But the mere possession of the documents does not give the auditor the right to publish them in the financial statement, never mind otherwise. The financial statements are the clients; the auditor's right is to withhold the certificate. To what extent do these functions require that the waiver of solicitor-client privilege by the client be for all purposes at all future times?

[145]     I note, parenthetically, that it is important that the Court in Philip Services (and others) have emphatically stated that auditors are not in the family of the client; they are third parties. This answers the submission of the Auditor General here that he is within the umbrella of the privilege.

[146]     But of more importance, I suggest that the courts in these cases undertook no real analysis in suggesting that the statutes compelled production of the privileged documents. It was more or less assumed, and it was assumed in the context of the relationship between the companies and their respective auditors, not as in the case at bar, as between the auditor and government and third parties.

[147]     Finally, both cases were decided before the Supreme Court of Canada’s decision in Blood Tribe. In my respectful view, they offer little assistance to the Court in respect of the issues at bar.

[148]     I can here deal summarily with Mr. van Dongen’s “absurdity” argument based on s. 70 of the Legal Professions Act. In my respectful view, the fact that s. 70 may permit the government to demand a review of the legal accounts of those whom it indemnifies adds little to the debate. A legal accounts’ review is much more limited than the sweeping invasion of solicitor-client privilege which the Auditor General seeks by way of relief here. In my view, statutory provisions in the AGA are to be construed in the context of the law articulated in Blood Tribe. I would not give effect to this submission.

[149]     Finally, I should observe that the Auditor General was at pains to stress that his dissemination of privileged materials was closely guarded by s. 9 of the AGA and his self-imposed Guidelines. I take this to be a submission on the minimum impairment requirement of para. 3 of the Descôteaux test. That, as I have developed, would only have been at issue in the event that I had found that indeed the legislature has given the Auditor General power to interfere with the privilege. I have not. That said, given the breadth of potential disclosure under s. 9 of the AGA, and the shifting of the burden to prevent disclosure to the privilege holder under the Guidelines, I have serious reservations that this “scheme” adequately addresses the minimum impairment rule.

[150]     In summary, I have concluded that properly construed, s. 16 of the AGA does not support the declarations sought by the Auditor General with respect to material and evidence subject to a claim of solicitor-client privilege.

[151]     As the parties have, I have largely analyzed the reach of s. 16 of the AGA in the context of the Special Indemnities which, of course, causes the inquiry to focus on the solicitor-client privilege of third parties who are otherwise unrelated to government. The declarations sought would also include material subject to the government’s own solicitor-client privilege. I do not believe that a different result would follow in this context. I have construed s. 16 in light of the cases and, in particular, as guided by Blood Tribe. The rule against abrogation of the privilege by inference would seem to me to apply equally here. This is likely not a practical issue as it appears that government and the Auditor General have arrived at necessary accommodations in this regard. In the words of Mr. Copley, in this area: “co-operation should be the rule and litigation the exception.”

VI.      PUBLIC INTEREST IMMUNITY

[152]     Notwithstanding the mootness of this issue, in light of the government’s voluntary disclosure of Cabinet documents which otherwise attract this privilege, the parties asked me to consider s. 16 in light of this privilege.

[153]     As I noted above, the Amicus did not make submissions on this aspect of the matter and the submissions of the Auditor General barely touched on it. In all of the circumstances, I do not think it prudent at this time to consider this declaratory relief and in an exercise of my discretion, I decline to do so.

[154]     Further, the parties did not address the issue of whether s. 16 of the AGA is to be read as compelling the disclosure of documents subject to other privileges, for example, subject to a timely claim of litigation privilege (as to the distinction between it and legal advice or solicitor-client privilege, see the majority’s decision in Blank, supra). I reach no conclusion in this regard. I find simply that the declarations sought cannot go with respect to solicitor-client privilege, as I have defined it.

VII.     DISPOSITION

[155]     In the result, the Petition is dismissed. I thank the parties and the intervenor for their extensive and helpful submissions. I thank, in particular, the Amicus. This case, once again, demonstrates the value of such submissions on matters of legal import in public law. The contribution of an Amicus in such matters is extremely helpful to the Court and is an economical and efficient way of ensuring that all voices in these difficult matters are heard.

“Chief Justice Bauman”