“Subrule 19(11) directs a consideration of any legal privilege that might operate to exclude the production sought. The Attawapiskat FN raised privacy concerns for all family members and argued the release of the records would cause prejudice to the parents. Yet none of the parties squarely addressed the question of legal privilege or provided the court with the applicable law.
A legal privilege aimed at protecting a privacy interest in a communication, document or record is well established in the common law. Its principles have been considered and elaborated by the Supreme Court of Canada in several contexts. See: Slavutych v. Baker et al., 1975 CanLII 5, SCC; R v. Gruenke, 1991 Can LII 40 (SCC); A. (L.L. v. B.(A.), 1995 Can LII 52 (SCC); and M.(A.) v. Ryan, 1997 Can LII 403 (SCC)( “Ryan”).
In Slavutych v. Baker et al., supra, the Supreme Court adopts the 4-part Wigmore test to articulate the approach for establishing a case- by- case privilege. The SCC’s expression of this test in Ryan, at para. 20 is as follows:
First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served in protecting the communication from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.
The court in Ryan sets out a number of principles including:
(1) The law of privilege must evolve to reflect the social and legal realities of our time. This means the common law of privilege must be developed in accordance with Charter values, such that existing rules are scrutinized to ensure they reflect the values the Charter enshrines. (See paras. 21 – 22)
(2) Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. (See para. 37)
(3) It is not essential for the court to examine every document to assess the claimed privilege. (See para. 39); and
(4) An all or nothing approach to production should be rejected in favour of partial privilege and companion tailor-made production orders that include provisions for redaction, and limiting reproduction and dissemination. (See para. 33)
In G.(L.) v. B.(P)., 1996 Can LII (ONCJ), the court concludes the first branch of the Wigmore test is not satisfied in relation to child protection records, noting the relationship between a parent and the society is not a confidential one. As Brownstone J. puts it at para. 12:
The relationship and dynamic between parents and the society is complex and can oscillate between one of voluntariness, in which guidance, counselling and assistance are sought and provided, to one in which parents co-operate with the society in order to avoid court proceedings, to a highly adversarial one where the society seeks to remove children from their parents. Given this reality, I cannot see how society workers could give a parent any assurance of confidentiality in respect of communications regarding the children, when at any time such information might be relied upon by the society in a protection proceeding. A parent such as the respondent who has been the subject of investigations by the society could not have any reasonable expectation of privacy.”
M.M-A., P.A., M.D. and A.D. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597 (CanLII) at 35-39