Sep 21, 2020

One of the duties of a regulator in disciplinary matters is to disclose all relevant information it possesses unless the information is privileged. This duty was discussed in detail in Law Society of Upper Canada v Savone, 2016 CanLII 33941 (ON SCDC). It was alleged that Savone had participated in mortgage fraud by flipping properties at inflated prices in “no money down” transactions. Savone sought access to the client files of the lawyers for the other parties in those transactions but the Law Society refused to make that disclosure. In upholding the duty to disclose those files, the Divisional Court held that the confidentiality provisions of the Law Society Act did not create a special privilege; instead the usual test of relevance and privilege remained in place. The fact that the files were obtained by the regulator in other investigations (not the investigation of Savone) was irrelevant; the Law Society possessed them. Once the issue of disclosure of the files was raised by Savone, the prosecution had a duty to review the files and disclose all relevant information unless it was asserting a privilege. Both decisions (i.e., relevance and privilege) were reviewable by the hearing panel. The Court held that a broad view should be taken on the issue of relevance to any issue in the proceeding. Disclosure was not limited to information that would exculpate the member. That the files were held by another department of the regulator did not make them “third-party” files requiring a special procedure to determine whether they should be produced (i.e., an O’Connor motion).