Solicitor/Client Privilege and the Guardian/Committee/Trustee

An interesting quandry for lawyers and guardians was raised in the recent Alberta case of Wayne v. Wayne. Where, due to mental incapacity, a guardian for property has been appointed for an individual (in Alberta a trustee, in B.C. a committee), does the guardian have a right of access to documentation and communications between the individual and her or his lawyer that would otherwise be subject to solicitor/client privilege? The answer, as is often the case, is “it depends”.

In this case, the guardian, a son of the affected individual (his mother), sought access to a solicitor’s file with respect to certain transfers of land by the mother. On behalf of the mother, the guardian commenced an action in respect of the transfers and on application to the Court sought an order requiring the lawyer to provide his file. The lawyer opposed on grounds of solicitor/client privilege.

In deciding that the son should have access to the lawyer’s file, the Court reviewed Alberta’s Adult Guardian and Trustee Act (“AGTA”), Protection of Personal Information Act (“PIPA”) and the common law on solicitor/client privilege. While recognizing the sanctity of solicitor/client privilege, the Court found that s. 72(4) of the AGTA created a limited legislative exception to the general rule concerning solicitor/client communications, which exception was not overridden by the PIPA. Section 72(4) deals with access to personal information of the affected individual, providing that “[a] trustee is entitled to access, collect or obtain from a public body, custodian or organization personal information about the represented adult that is relevant to the exercise of the authority and the carrying out of the duties and responsibilities of the trustee”. A law firm is an “organization” under that section. The PIPA allows for the release of information where disclosure is “in the interests of the represented individual and consent of the represented individual cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent”. Given the mental incapacity in this case, consent of the individual was not possible.

The Court found that in interpreting these sections, the legislative scheme “does not grant a trustee full access to the represented adult’s file. Rather, a trustee is entitled to material otherwise protected by solicitor-client privilege that is relevant to the exercise of the trustee’s authority and the carrying out of the trustee’s duties and responsibilities”. In this case, the Court found that the file sought was relevant to the issues raised in the lawsuit commenced on behalf of the mother and therefore disclosure was ordered as relevant to the exercise of the trustee’s authority and the carrying out of the trustee’s duties and responsibilities.

Of note, as part of it analysis, the Court recognized that that in situations where there has been a death, as opposed to a guardianship, the common law recognizes that solicitor/client privilege “survives the death of the client and enures to his or her next of kin, heirs or successors in title”.

Query how this situation might be dealt with in Ontario. The provisions of Ontario’s Substitute Decisions Act (“SDA”) differ from those of the AGTA. Section 31.1 of the SDA states that “[a]ny person who has personal information about an incapable person to which the incapable person would be entitled to have access if capable, including health information and records, shall disclose it to the incapable person’s guardian of property on request”. This section does not include the limitation of the Alberta Act that the disclosure be “relevant to the exercise of the authority and the carrying out of the duties and responsibilities of the trustee”. As for applicable privacy legislation, the commentary included in Schedule 1 of the Personal Information Protection and Electronic Documents Act recognizes that the requirement for consent of the person prior to disclosure of personal information may not be possible (and therefore not always required) in certain circumstances and specifically references the example of mental incapacity. As a result, it is arguable that under the SDA the exception to solicitor/client privilege may be broader in Ontario.

2 Responses to “Solicitor/Client Privilege and the Guardian/Committee/Trustee”

  1. Good summary and consideration of the issue for Ontario practitioners in considering the Alberta case. Thanks for sharing.

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