“As discussed on numerous occasions, solicitor-client privilege is a fundamental civil right and “a cornerstone of our system of law” (Re Palamarek, 2010 BCSC 1894 (CanLII), 196 A.C.W.S. (3d) 410).
As stated by Justice Jennings in Soriano v. Laberakis (2006), 2006 CanLII 3973 (ON SCDC), 80 O.R. (3d) 303, 145 A.C.W.S. (3d) 927 (Ont. Div. Ct.) at para. 7: “A client so disabled cannot properly instruct his counsel and his counsel accordingly had no proper authority to release information protected by a solicitor and client privilege.”
This is to be distinguished from Barnes v. Kirk (1968), 1968 CanLII 389 (ON CA), [1968] 2 O.R. 213, 1968 CarswellOnt 711, where the Ontario Court of Appeal was dealing with an appeal of an order compelling a plaintiff to attend discovery. The plaintiff’s counsel filed an affidavit with his information and belief regarding his client’s condition. The Court found it to be hearsay. No medical evidence was filed. The court found: “The party’s unsoundness of mind constitutes such a valid reason [for non-attendance at discovery], but the onus of rests on the party alleging it. The question essentially is one to be decided upon medical evidence; without direct cogent evidence from a person duly qualified to speak with authority upon the subject, it is difficult to perceive how the court could pass upon the question judicially”.
The legal system is based on the right of a client to be protected by solicitor-client privilege. A lawyer is under a professional duty not to disclose information arising out of a solicitor-client relationship. This professional duty must be protected to ensure the proper administration of justice. On the other hand, the litigation here will be at a standstill given the current state of the Respondent. The evidence to date clearly demonstrates that this litigant is in a serious anxious state that prevents her from engaging in the litigation. In order to ensure that the process and the parties’ interests are protected, the Court must make a determination of whether this litigant should have a litigation guardian and in doing so, the Court would benefit from the review of her counsel’s affidavit.
Accordingly, the importance of determining if the Respondent has the capacity to continue on her own with this litigation or whether she requires a litigation guardian to represent her dictates that the Court review the evidence that may assist in this analysis. Clearly, the lawyer’s evidence, which includes her observations and views, is of some significance in this analysis as per Costantino v. Costantino, 2016 ONSC 7279 (CanLII), 273 A.C.W.S. (3d) 282 [Costantino].
The Respondent has met the burden of showing that the sealing order is necessary to prevent the serious risk to the administration of justice of a breach of solicitor-client privilege and that there are no reasonable alternatives that will avoid the risks. Secondly, she has shown that the beneficial effects of the sealing order outweigh the deleterious effects on the rights and interests of the public (R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442; Edmonton Police Service v. Alberta (Law Enforcement Review Branch), 2013 ABCA 236 (CanLII), 553 A.R. 389).
The Court finds that the affidavit of the Respondent’s counsel could be of assistance to the Court. Counsel’s observations and interactions with her client will shed light on whether she “is not able to appreciate the reasonably foreseeable consequences of a decision or lack thereof” as set out in the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).”