Case: AARC Society v Sparks, 2018 ABCA 280 (CanLII)
Keywords: Solicitor Client Privilege; Future Crimes and Fraud Exception; Stay; RJR Macdonald v Canada (Attorney General), 1994 CanLII 117 (SCC)
Amy Sparks, in her role as a contract computer technician for Alberta Adolescent Recovery Centre Society (AARC), uses the passwords of AARC employees and downloads, without authorization, several thousand electronic records from AARC before and after consulting her lawyer, Brian Fish. Many of these documents are forwarded to Brian Fish, who then turns them over to the CBC. (See AARC Society v Sparks, 2018 ABCA 177 (CanLII)).
Ms. Sparks and Mr. Fish separately apply to stay of an order of the Alberta Court of Appeal requiring them to produce (for inspection by a judge of the Court of Queen’s Bench) “…records of any communications between them in relation to the taking and distributing of…AARC Society’s records” (See para. 1) on the basis of the “future crimes and fraud” exception to solicitor-client privilege. (See AARC Society v Sparks, 2018 ABCA 177 (CanLII)). The Court of Appeal determines the Applicants would not suffer any harm if the stay is not granted.
The Court of Appeal applied the three-part test articulated in RJR Macdonald v Canada (Attorney General), 1994 CanLII 117 (SCC) and considered whether the interests of justice called for a stay. (See para. 5).
With respect to determining whether the Applicants raise a “serious question to be determined”, the Court of Appeal noted the wider context of this litigation, including an application for leave to appeal to the Supreme Court of Canada. (See paras. 7-9). Citing Wenzel Downhole Tools Ltd v National Oilwell Varco, Inc, 2008 ABCA 434 (CanLII) at para. 3, the Court determined that, where leave has been sought, it is appropriate to consider whether the Supreme Court of Canada might regard the matter as one of public importance in its assessment.
In this case, the “serious question” concerns the application of a substantive rule – namely, is solicitor client privilege absolute, or can it be interfered with on the basis of the “future crimes and fraud” exception in circumstances where communications with a lawyer are made allegedly for the purpose of facilitating unlawful conduct. (See para. 13 generally). Simply put, Ms. Sparks was communicating with her lawyer while AARC materials were being taken and distributed. Understandably, there is some interest in the content of those communications. The question is, should a Court be permitted to access that content, or is it protected by solicitor-client privilege? The Court of Appeal was satisfied questions related to the exception were sufficiently serious and might attract the Supreme Court’s attention:
Given that the issues raised involve a substantive rule, rather than merely an evidentiary one, I am satisfied there is a serious question to be considered that the Supreme Court of Canada might regard as one of public and national importance. (See para. 9).
That being said, with respect to the irreparable harm and balance of convenience components of the RJR Macdonald test, the Court of Appeal was not persuaded either factor militated in favour of granting the stay. (See paras. 16-17). The Court of Appeal emphasized, however, that the parties will have an opportunity to provide input on the procedure for inspection and determination of whether privilege protects the communications in question:
I also have no doubt that the case management judge will be vigilant in ensuring that any procedure undertaken will not, as the applicants put it, “permanently interfere with the confidentiality of such communications in a way that cannot be undone”. (See para. 15).
Counsel for AARC Society: Grant Stapon, Q.C. (Bennett Jones LLP, Calgary)
Counsel for Amy Sparks: Erika Norheim (Erika Norheim Professional Corporation, Edmonton)
Counsel for Brian Fish: Michael MacIsaac (Norton Rose Fulbright Canada LLP, Calgary)