⚖️ Circle of trust

Can you breach confidence by getting legal advice? Plus: SCC says Doug Ford's mandate letters are privileged, Impact Assessment changes coming this spring, and Tesla might be moving to Texas

Happy Groundhog Day. The verdict on early spring seems to have split the country down the middle:

  • Ontario’s Wiarton Willie, Nova Scotia’s Shubenacadie Sam, and Quebec’s Fred la Marmotte all predicted an early spring

  • Alberta’s Balzac Billy, Manitoba Merv, and Van Isle Violet are hunkering down for an extended winter

If you’re willing to cross the border for a tiebreaker, Pennsylvania’s notorious Punxsutawney Phil also predicted an early spring. I appreciate that we could arguably find a tiebreaker here at home in Nova Scotia’s Lucy The Lobster, but it’s a slippery slope to allow lobster participation and I simply will not stand for it.

Have a great weekend everyone.

— Dylan Gibbs


6 min read

  • Can you breach confidence by getting legal advice?

  • SCC says Doug Ford’s mandate letters are privileged

  • Impact Assessment changes coming this spring

  • Tesla might be moving to Texas



Reference re: An Act respecting First Nations...

Paramountcy of Indigenous laws over provincial laws

Dec 8, 2022

R. v. Bykovets*

Expectation of privacy in an IP address

Jan 17, 2023

Dickson v. Vuntut Gwitchin First Nation

Forcing elected officials to reside within First Nation

Feb 7, 2023

Société des casinos du Québec

Unionization of low-level casino managers

Apr 20, 2023

R. v. Kruk; R. v. Tsang

Common sense reasoning vs. unfounded generalizations

May 18, 2023

R. v. Tompouba

Remedy for breach of French-trial rights

Oct 11, 2023

On average, decisions take 5 months
* R. v. Bykovets was re-heard on Dec 11, 2023


Lawyers have a permanent spot in the circle of trust

Two women in a lawyer's office, one whispering into the other's ear

If someone has a duty of confidentiality, can they at least talk to their lawyer? Not according to a municipal organization in BC, which punished one of its board members for getting legal advice during an ethics probe. And not according to the BC Supreme Court, which concluded the organization’s decision was reasonable.

But the BC Court of Appeal came to the opposite conclusion. According to the Court of Appeal, there’s nothing wrong with disclosing confidential information to get legal advice.

What happened: While Noba Anderson was serving as an elected board member for the Strathcona Regional District, some of her constituents alleged that she acted improperly. Strathcona staff wrote a confidential memo to the Board about the issue, which Anderson shared with her lawyer. The Strathcona Board censured Anderson for disclosing the memo, saying that she breached her statutory duty of confidentiality.

On judicial review, the BC Supreme Court sided with Strathcona. Anderson should have asked permission to disclose the memo — even to her lawyer.

But the Court of Appeal endorsed a circle of trust. Sharing confidential information with a lawyer isn’t the same thing as sharing with the public, because lawyers owe a duty of confidentiality to their clients. Sharing with a lawyer simply brings the lawyer into the “zone of confidentiality”. And there’s nothing wrong with that — Anderson was fully entitled to get legal advice about confidential information without asking for permission.

[A]ll citizens have an interest in full and ready access to meaningful legal advice in matters of personal importance.

Should the Court have given deference to the Board? Not in this case. According to the Court, the question of whether someone breaches confidence by speaking to a lawyer has far-reaching implications. It’s a rare breed — a question of such central importance to the legal system as a whole that it demands a correct answer.



↩️ According to the Supreme Court, Ontario’s Information and Privacy Commissioner shouldn’t have ordered disclosure of the mandate letters Doug Ford sent to his ministers. Monday’s newsletter will have more on the decision.

🏙️ Rising construction costs, high interest rates, and a slow real estate market are causing a boom in real-estate receiverships.

✍️ If you’re still waiting on changes to the Impact Assessment Act (which the Supreme Court said was unconstitutional last fall), you can set your sights on spring. That’s when the federal government plans to introduce amendments. And they won’t just fix the unconstitutional bits — Natural Resources Minister Jonathan Wilkinson says there’s also a focus on making the assessment process faster and more effective.

🧐 BC is reviewing its Labour Relations Code to consider amendments, which happens every 5 years. The three-person review panel is expected to report back by the end of May.

😷 A justice of the peace held that the curfew imposed by Quebec during the COVID-19 pandemic was a reasonable limit on Charter rights.

🪫 An e-bike battery allegedly lit on fire and killed someone in their Vancouver apartment. The deceased’s widow is suing the e-bike company and the battery company.

Beyond the border

💊 Publicis Health became the first advertising company to climb aboard the opioid settlement train. The company agreed to pay US states $350 million to settle allegations that its Oxycontin marketing work fuelled the opioid crisis.

✌️ Elon Musk wants to send Delaware a message by packing up Tesla’s things and moving to Texas. Earlier this week, a Delaware judge sided with shareholders in a derivative action that invalidated Musk’s compensation package of nearly $56 billion. The judge called Musk’s pay “an unfathomable sum” negotiated by conflicted directors. Musk took to X in response, first to announce his displeasure with Delaware and then to ask users to vote on Tesla relocating to Texas. The user poll came up strongly in favour of Texas — next stop, a shareholder vote.

Was the richest person in the world overpaid? …

The defendants [had] the unenviable task of proving the fairness of the largest potential compensation plan in the history of public markets. If any set of attorneys could have achieved victory in these unlikely circumstances, it was the talented defense attorneys here. But the task proved too tall an order.


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