Chief Melvin Goodswimmer, et al. v. Her Majesty the Queen in Right of Alberta, et al.

(Alberta) (Civil) (By Leave)




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Civil procedure – Discovery – Undertakings – Solicitor-client privilege – Implied waiver – Plaintiffs refusing to answer undertakings on the basis of solicitor-client privilege – Defendants applying to case management judge to compel answers – What is the proper test to determine when a client has waived solicitor-client privilege by implication when the client does not expressly make its knowledge of the law an issue in the case? – When can an opposing party raise a client’s knowledge of the law such that the client is deemed to have waived his or her solicitor-client privilege?

In January 1990, Her Majesty the Queen in Right of Canada and the Sturgeon Lake Indian Band entered into a Treaty Land Entitlement Agreement. The Agreement purported to settle a 1987 lawsuit between the Band and Her Majesty the Queen in Right of Alberta. In 1997, the Band commenced an action against Canada and Alberta, making additional land claims and asserting that Canada had obtained the Band’s consent to the Agreement through breach of trust, breach of fiduciary duty, equitable fraud, deceit or negligent misrepresentation, and without fully informing the Band of the impact of the Agreement on its members’ rights.

Following examinations for discovery conducted in context of the litigation, the Band refused to answer 13 undertakings on the basis that the information sought was protected as privileged communication between solicitor and client. Canada and Alberta applied to compel answers to the undertakings. The case management judge allowed the application. The Band’s appeal to the Court of Appeal was dismissed. O’Ferrall J.A., dissenting, would have allowed the appeal and set aside the case management judge’s order.

Lower Court Rulings

December 4, 2014
Court of Queen’s Bench of Alberta

9703 06332, 2014 ABQB 726
Application by respondents for an order compelling applicants to provide responses to undertakings allowed: applicants are required to provide responses to undertakings previously refused that relate to legal advice
July 27, 2015
Court of Appeal of Alberta (Edmonton)

1503-0003-AC, 2015 ABCA 253
Appeal dismissed