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B.C. ruling means journalist must hand over notes

Case relates to comments about expert witness in 2012 personal injury trial
|Written By Gabrielle Giroday

A Vancouver journalist has been ordered by the Supreme Court of British Columbia to hand over his notes in relation to a law society investigation. 

Michael Feder says a recent B.C. Supreme Court decision ordering a journalist to turn over his notes was not surprising.
The ruling earlier this month came from a legal stand-off between Vancouver Sun journalist Ian Mulgrew and Postmedia Network Inc., versus the Law Society of British Columbia and its designate Kurt Wedel.

Mulgrew had written in 2012 about Thomas Harding, a B.C. lawyer who ended up under investigation by the law society for his role in Walker v. Doe, a personal injury trial.

Amrit Toor, a forensic engineer specializing in accident reconstruction retained by the Insurance Corporation of British Columbia to testify at the trial, had demanded an apology from Mulgrew and Postmedia following a Vancouver Sun article that included Harding’s commentary on Toor’s skills. Toor also sued Harding and Mulgrew, Postmedia, and the newspaper’s editor-in-chief for defamation.

“The presiding judge declared a mistrial following Mr. Harding’s address to the jury. The statements attributed to Mr. Harding in the Vancouver Sun article were critical of Dr. Amrit Toor, an expert witness who testified at the trial on behalf of the defendants,” said the recent Supreme Court ruling by Justice G. Bruce Butler.

Through their counsel, Mulgrew and Postmedia argued that they should not have to fulfil production orders by the law society and turn over notes made by the journalist, because to do so would violate both s. 7 and s. 8 of the Canadian Charter of Rights and Freedoms. They also argued that section 26 of British Columbia’s Legal Profession Act — which states materials must be provided “even if it is confidential or subject to solicitor client privilege” — did not apply to them.

“The petitioners seek relief on the basis that the production provisions of s. 26 of the LPA, when considered in light of common law statutory interpretation principles and in light of provisions of the Charter, do not apply to them,” said Butler, in the ruling.

As the ruling goes on to note, this argument rests on the idea there are two categories of people who could receive production orders.

The first group is made up of “people who are either regulated by the Law Society or directly connected with lawyers.”

“The petitioners say they are part of a group of people in the second category, including the media and members of the public, who are only indirectly related to any investigation of a member of the Law Society (the “Non-Regulated Group”).

The petitioners say that s. 26(4) does not extend to members of the Non-Regulated Group and that an investigator appointed by the Law Society does not have the jurisdiction to make an order under that section against the Non-Regulated Group,” explains Butler, in the ruling.

However, Butler ruled that Mulgrew had to turn over his notes, noting “the nature of the legal profession is such that the Law Society could not investigate complaints about its members without access to privileged information.”

“I agree with the Law Society’s position. It is evident that there are many different circumstances under which the Law Society might issue a production order for records in a party’s possession which might be subject to solicitor-client privilege,” he said.

Michael Feder, a partner in the litigation group of McCarthy Tétrault LLP in Vancouver who represented the Law Society of British Columbia and its designate Kurt Wedel, says the decision was “not a surprising ruling” that was “totally in keeping with prior decisions.”

“First of all, the Supreme Court of Canada and other courts have repeatedly emphasized the crucial role the professional regulators like the law society play in protecting the public interest, and in that connection, they’ve also emphasized the need of those professional regulators to be able to compel documents and information relevant to investigations from anyone possessed of them,” says Feder.


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