Pritchard v. HRC, (2004) 187 O.A.C. 1 (SCC)

• Judge: Iacobucci, Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 23, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 187 O.A.C. 1 (SCC);2004 SCC 31;[2004] ACS no 16;319 NR 322;238 DLR (4th) 1;12 Admin LR (4th) 171;33 CCEL (3d) 1;[2004] 1 SCR 809;187 OAC 1;[2004] SCJ No 16 (QL);49 CHRR 120;19 CR (6th) 203

Pritchard v. HRC (2004), 187 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] O.A.C. TBEd. MY.039

Colleen Pritchard (appellant) v. Ontario Human Rights Commission (respondent) and Attorney General of Canada, Attorney General of Ontario, Canadian Human Rights Commission and Manitoba Human Rights Commission (interveners)

(29677; 2004 SCC 31; 2004 CSC 31)

Indexed As: Pritchard v. Human Rights Commission (Ont.) et al.

Supreme Court of Canada

Iacobucci, Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.

March 23, 2004.

Summary:

Pritchard filed a human rights complaint against her former employer. The Ontario Human Rights Commission decided not to deal with most of Pritchard's complaint. Pritchard applied for judicial review. She sought production of various documents, including a legal opinion that had been prepared for the Commission by in-house counsel. The Commission refused to disclose the material.

The Ontario Divisional Court, per Mac­Farland, J., in a decision reported at 148 O.A.C. 260, ordered that the documents be produced. MacFarland, J., held, inter alia, that the legal opinion was not protected by solicitor-client privilege. The Commission sought a review of MacFarland, J.'s decision by a full panel of the court on the issue of production of the legal opinion.

The Ontario Divisional Court, in a decision not reported in this series of reports, af­­firmed MacFarland's decision. The Com­mis­sion appealed.

The Ontario Court of Appeal, in a decision reported at 167 O.A.C. 356, allowed the ap­peal. Pritchard appealed.

The Supreme Court of Canada dismissed the appeal.

Editor's note: for a related decision see 122 O.A.C. 302.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - The Ontario Human Rights Commission refused to deal with Pritchard's complaint - Pritchard applied for judicial review - She sought disclosure of a legal opinion prepared for the Com­mission by in-house counsel - The opinion had been before the Commission when it made its decision - The Supreme Court of Canada affirmed that the opinion was sub­ject to solicitor-client privilege - The court stated that "Procedural fairness does not require the disclosure of a privileged legal opinion. Procedural fairness is required both in the trial process and in the admin­istrative law context. In neither area does it affect solicitor-client privilege; both may coexist without being at the expense of the other. In addition, [Pritchard] was aware of the case to be met without pro­duction of the legal opinion. The concept of fairness per­meates all aspects of the justice system, and important to it is the principle of solicitor-client privilege." - See paragraph 31.

Administrative Law - Topic 2402

Natural justice - Procedure - General - Duty of fairness - [See Administrative Law - Topic 2264 ].

Administrative Law - Topic 3213

Judicial review - General - Material re­quired to be produced on review - The Ontario Human Rights Commission refused to deal with Pritchard's complaint - Prit­chard applied for judicial review - She sought disclosure of a legal opinion pre­pared for the Commission by in-house coun­sel - The opinion had been before the Commission when it made its decision - The Supreme Court of Canada affirmed that the opinion was subject to solicitor-client privilege - It was a communication from a professional advisor, in her capacity as such, and made in confidence to her client, the Commission - The court stated that solicitor-client privilege applied "with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. If an in-house lawyer is conveying advice that would be charac­terized as privileged, the fact that he or she is 'in-house' does not remove the privi­lege, or change its nature." - See para­graphs 21 and 36.

Administrative Law - Topic 3213

Judicial review - General - Material re­quired to be produced on review - The Ontario Human Rights Commission refused to deal with Pritchard's complaint - Prit­chard applied for judicial review - She sought disclosure of a legal opinion pre­pared for the Commission by in-house coun­sel - The opinion had been before the Commission when it made its decision - Sec­tion 10 of the Judicial Review Pro­cedure Act required that the record of proceedings be produced upon an applica­tion for judicial review - The Supreme Court of Canada stated that legislation purporting to limit or deny solicitor-client privilege had to be interpreted restrictively - Solicitor-client privilege could not be abrogated by inference - The court stated that "Section 10 of the [Act] ... does not clearly or unequivocally express an inten­tion to abrogate solicitor-client privilege, nor does it stipulate that the 'record' in­cludes legal opinions. As such, 'record of the proceedings' should not be read to in­clude privileged communications from Com­mission counsel to the Commission." -See paragraphs 32 to 35.

Administrative Law - Topic 3213

Judicial review - General - Material re­quired to be produced on review - The Ontario Human Rights Commission refused to deal with Pritchard's complaint - Prit­chard applied for judicial review - She sought disclosure of a legal opinion pre­pared for the Commission by in-house coun­sel - The opinion had been before the Commission when it made its decision - Pritchard argued that solicitor-client privi­lege did not attach to communications between a solicitor and client against per­sons having a "joint interest" with the client in the subject matter of the com­munication - The Supreme Court of Can­ada stated that "The common interest exception does not apply to an administra­tive board with respect to the parties before it" - In particular the court held that the exception did not apply to the Com­mission because it did not share an interest with the parties before it - The Commis­sion was a disinterested gatekeeper for human rights complainants and, by defini­tion, did not have a stake in the outcome of any claim - See paragraphs 22 to 26.

Administrative Law - Topic 3213

Judicial review - General - Material re­quired to be produced on review - [See Administrative Law - Topic 2264 ].

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commis­sions or boards - General - Duty of fair­ness - [See Administrative Law - Topic 2264 ].

Civil Rights - Topic 7119

Federal, provincial or territorial legislation - Practice - Discovery and disclosure - [See Admin­istrative Law - Topic 2264 and first, second and third Administrative Law - Topic 3213 ].

Evidence - Topic 4245.7

Witnesses - Privilege - Lawyer-client communications - Common interest privi­lege - [See third Administrative Law - Topic 3213 ].

Evidence - Topic 4245.8

Witnesses - Privilege - Lawyer-client communications - Privilege - Communica­tions with in-house counsel - [See first Administrative Law - Topic 3213 ].

Cases Noticed:

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 14].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 15].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 16].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 17].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 164 O.A.C. 280; 2002 SCC 61, refd to. [para. 18].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 19].

R. v. Dunbar and Logan (1982), 138 D.L.R.(3d) 221 (Ont. C.A.), refd to. [para. 23].

Buttes Gas & Oil v. Hammer (No. 3), [1980] 3 All E.R. 475 (H.L.), refd to. [para. 24].

Melanson v. Workers' Compensation Board (N.B.) (1994), 146 N.B.R.(2d) 294; 374 A.P.R. 294 (C.A.), not folld. [para. 26].

Statutes Noticed:

Judicial Review Procedure Act, R.S.O. 1990, c. J-1, sect. 10 [para. 32].

Counsel:

Geri Sanson and Mark Hart, for the appel­lant;

Anthony D. Griffin and Hart Schwartz, for the respondent;

Christopher M. Rupar, for the intervener, Attorney General of Canada;

Leslie M. McIntosh, for the intervener, Attorney General of Ontario;

Andrea Wright and Monette Maillet, for the intervener, Canadian Human Rights Commission;

Aaron L. Berg, for the intervener, Mani­toba Human Rights Commission.

Solicitors of Record:

Sanson & Hart, Toronto, Ontario, for the appellant;

Ontario Human Rights Commission, Tor­onto, Ontario, for the respondent;

Deputy Attorney General of Canada, Ottawa, Ontario, for the intervener, At­torney General of Canada;

Ministry of the Attorney General of On­tario, Toronto, Ontario, for the inter­vener, Attorney General of Ontario;

Canadian Human Rights Commission, Ottawa, Ontario, for the intervener, Ca­nadian Human Rights Commission;

Manitoba Human Rights Commission, Winnipeg, Manitoba, for the intervener, Manitoba Human Rights Commission.

This appeal was heard and decided on March 23, 2004, by Iacobucci, Major, Bas­ta­rache, Binnie, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada. On May 14, 2004, Major, J., delivered the fol­lowing reasons for judgment for the court in both official languages.