The application of the principles of solicitor-client privilege to the position of in-house counsel has given rise to some debate in the courts and the literature. The debate relates to both types of privilege, namely, the privilege arising directly from solicitor and client communications and that arising from the “solicitor’s work product” approach. The genesis of the debate over whether solicitor client privilege should apply to an in-house counsel, however, arises from the role of the in-house counsel as both an employee of the client and an internal adviser of the organization on matters not restricted to legal opinions.
The most recent statement from the Supreme Court of Canada on the issue of solicitor-client privilege for an in-house counsel came in an appeal which had made its way through the Ontario courts and related to a legal opinion provided by an in-house counsel to the Ontario Human Rights Commission. The appellant had filed a complaint with the Commission against her former employer. The Commission refused to deal with the complaint and the appellant sought judicial review. In this proceeding, she brought a motion for production of the Commission’s file, including the legal opinion. The motion’s judge granted the motion and on appeal to the Divisional Court the decision was upheld. On appeal to the Court of Appeal, the legal opinion was held to be privileged. A further appeal to the Supreme Court of Canada was unsuccessful as it was held that the privilege applied to communications between an in-house solicitor and the client organization in the same manner as it applied to retained solicitors.
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