Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation: Nova Scotia (Transportation and Infrastructure Renewal)

v. Peach, 2011 NSCA 27

Date: 20110304

Docket: CA 327470

Registry: Halifax

Between:

Nova Scotia (Department of Transportation

and Infrastructure Renewal)

Appellant

v.

Nora T. Peach

Respondent

Judge:                   The Honourable Justice Linda Lee Oland

Appeal Heard:      January 20, 2011

Subject:                 Solicitor-Client Privilege - Waiver - Freedom of Information and Protection of Property Act, S.N.S. 1993, c. 5, s. 16 (FOIPOP)

Summary:             The respondent inquired as to the legal status of a road.  An area manager of the appellant sent her an e-mail which referred to a legal opinion obtained from a government lawyer and summarized its reasons.  The respondent’s request for access to the opinion was denied on the basis of the exemption for information subject to solicitor-client privilege contained in s. 16 of FOIPOP.  The judge found that the opinion was subject to such privilege and that it had been impliedly waived by a person who had authority to do so.   The appellant appeals his order for full disclosure of the legal opinion. 

Issues:                   Whether a civil servant may waive solicitor-client privilege that would otherwise attach to confidential legal advice received from a government lawyer.  Whether the area manager’s e-mail waived the privilege.

Result:                  Appeal dismissed.  In deciding that solicitor-client privilege could be waived other than by an order-in-council by the Executive Council, the judge made no error that would attract appellate intervention.  The framework he suggested to determine when a government actor can do so is consistent with the principle of distributed governmental authority.  The judge made no palpable and overriding errors in finding that the author of the e-mail had authority to waive privilege, he evinced an intention to waive, and the entire opinion letter should be disclosed.