An Appeal Court recently upheld a Supreme Court of Newfoundland and Labrador ruling that found the Federation of Newfoundland Indians (FNI) waived its right to solicitor-client privilege on a pair of letters that were somehow published on an American website.
The matter stems from a suit filed in 2018 by six individuals against FNI and the federal government, seeking an oppression remedy. The six plaintiffs — Shawn Benoit, Matthew Anderson, Marie Tapp Melanson, Bobbie Tapp Goosney, Paul Bennett and Jennifer Sue Le Roux — are currently listed as founding members of the Qalipu Mi’kmaq First Nation Band, which FNI preceded. FNI presently exists as a legal entity comprised of elected members of the Qalipu council. The plaintiff's want the court to rescind an agreement FNI entered into with the federal government in 2013 that resulted in a reassessment of all applications for band enrolment.
As part of that court matter, the legal team for the plaintiffs (referred to as Benoit in the Court of Appeal of Newfoundland and Labrador decision) filed a list of documents in November of 2018 that included two letters from a lawyer with Cox & Palmer. One was addressed to the board for FNI in 2009 and the other to Brendan Sheppard in 2013. Sheppard was the Qualipu band chief at that time. The lawyer for the plaintiffs learned about the letters' existence on the website “Qalipu Secrets” in May of that year and accessed them from that site.
The lawyer for FNI subsequently asserted solicitor-client privilege on the letters and took the matter to the Supreme Court of Newfoundland and Labrador for a ruling.
Last year, Justice Valerie Marshall ruled that although FNI had at one point held solicitor-client privilege over the two letters since they contained legal advice, it subsequently waived those privileges. Specifically, Marshall cited the fact FNI itself knew the letters existed on the website as of May of 2018. FNI did seek legal advice about getting the letters removed from the website but learned this action would be costly and likely ineffective, as there was a strong chance the letters would pop up again on other sites. Marshall found FNI did not make an attempt to assert solicitor-client privilege until six months after it learned the letters were publicly available.
In its appeal, FNI argued the Supreme Court justice should not have considered Benoit's counsel possession of the letters in May as irrelevant, stating it had a duty to advise FNI's counsel about the existence of "potentially privileged documents" on the website. It also argued an improper breach of solicitor-client privilege should be presumed in this case and "that the privilege is maintained and unable to be displaced by waiver."
The three judges that handled the appeal ultimately upheld the previous decision.
"In summary, I am of the view that the Judge's rulings respecting the role of counsel for Benoit and counsel for FNI, her refusal to presume that the documents were improperly obtained and distributed, and her considering whether FNI could demonstrate inadvertence, do not disclose error," wrote Justice Lois Hoegg. "Her decision that FNI waived privilege over the documents by acquiescing in its breach was correctly determined."
