Legal Privilege, Email And The Continuum Of Communication

Solicitor-client privilege extends not only to legal advice provided directly to a client, but to the whole "continuum of communications" in which the advice is given, the Alberta Court of Queen's Bench recently confirmed in Alberta (Municipal Affairs) v Alberta (Information and Privacy Commissioner), 2019 ABQB 274 [IPC]. In IPC, the Court determined that email chains discussing legal advice without the direct involvement of counsel were protected by solicitor-client privilege.

IPC is a judicial review of a decision by the Information and Privacy Commissioner of Alberta, who ordered that the Alberta Emergency Management Agency (AEMA) disclose certain documents. Previously, AEMA refused to disclose the documents in response to an access to information request on the basis they were protected from disclosure by legal privilege under section 27(1) of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25. In-house counsel from Alberta Justice and the Solicitor General prepared the documents as part of ongoing arbitration following the flooding in the town of High River.

On judicial review, the Court found that the documents did not have to be disclosed as they were protected by solicitor-client privilege. The Court focused its analysis on a set of documents described as follows:

There are emails in "chains" that are not directly between lawyer and client, or lawyer and lawyer, but have been sent by and received from members of the client group or department. Communications in this category request and give information, make inquiries, answer questions and otherwise relate topically to those in which legal counsel are directly involved.

The Court concluded that these email chains "form part of a discrete body of communications that includes clearly privileged material" because they "transmit or comment on" the privileged work product.

The Court found that the case law supported a "broad and contextual view of...