Introduction
The application was made by the trustee to the court to allow him to obtain solicitor confidential information which was contained in an estate file used to represent an adult (his mother) to whom the lawyer gave legal advice to sell the property.
Facts
A woman who is suffering from dementia sold her house for less than half its assessed value. Her son, who was appointed trustee of her estate is concerned with her mother’s mental capacity to sell the property. The son challenges the land transaction and therefore field a statement of claim challenging the sale of the property.
Opinion
The trustee ride on the relevant legislation that gave trustee a privilege to access collateral or other personal information about the represented adult. According to the son, Sections 55 and 72(4) of the AGTA or the common law, place solicitor-client privilege of a represented adult in a trustee. Therefore, the son had the rights to access the information contained in the mother’s estate file.
Conclusion
The court should grant access to the mother’s estate file of the law firm. Under the Adult Guardianship and Trustee Act (AGTA), the trustee has the privilege to access such information, especially when the adult is incapacitated. In other words, under AGTA, the trustee steps into the shoes of the incapable and represented adult and thus has access to the file which is created by the adult’s lawyer before the mother became incapacitated. It is justified to pierce the solicitor-client privilege since if the lawyer or next-of-kin of the deceased would be able to see the attorney’s file. If the representative or the trustee of an incapacitated adult can waive that person’s privilege, William must read the privileged materials in the mother’s file as he was exercising his duties as his mother’s trustee.
Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, [2010] 1 SCR 815, 2010 SCC 23 (CanLII)
Introduction
Do Canadians have a right to information under the Canadian Charter of Rights and Freedoms? The Supreme Court decision in determining the case between Ontario (Public Safety and Security) v. Criminal Lawyers’ Association provided guidance on the constitutional issue of whether section 2(b) of the Charter including the right to request access to government documents stand in the case against the Ministry’s solicitor-client privilege.
Facts
The case was brought before the Supreme Court by the Criminal Lawyers’ Association (CLA). The Criminal Lawyers’ Association (CLA) were seeking to compel the Ontario Provincial Police to disclose records relevant to the investigations of local police and the attorney. The ministry failed to disclose the documents requested by CLA as they cited Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA). The minister believed that the records requested were under the protection of the solicitor-client privilege from disclosure. However, the CLA claimed that the FIPPA breached the freedom of expression enshrined in section 2(b) of the Charter of Rights and Freedoms. The solicitor-client privilege was not subject to the compelling public interest in disclosure.
Opinion
The Supreme Court should not reverse the decision of the Court of Appeal. The FIPPA was consistent with section 2(b) of the Charter, and therefore the decision to deny access was constitutional. Section 2(b) of the Charter does not guarantee access to all government records or documents as FIPPA Section 23 allows exemptions in cases of compelling public interest. Moreover, section 2(b) of the Charter could only be applied to enable access to the government documents if only those records were meant for meaningful debates and discussions on the matter of public interest. It was reasonable for the court to uphold the solicitor-client privilege since the privilege was near-absolute.
Conclusion
It would be appropriate and constitutional for the Supreme Court of Canada to uphold the Court of Appeal decision. The Supreme Court should find that FIPPA was consistent with Section 2(b) of the Charter, which defines the right to freedom of expression, including the right to request access to government documents. The minister has the right to withhold government documents if in case the action is reasonable about the public interest. Disclosure exemptions relating to solicitor-client privilege does not contravene the Charter’s Freedom of Expression.