As Justice David Farrar summed up the appeal court ruling: “It would be manifestly unfair to allow the province to hide behind solicitor-client privilege while at the same time impugning the conduct of its solicitor.” But that didn’t stop the McNeil government from trying. And trying.
Last week, the Nova Scotia Court of Appeal instructed the McNeil government to stop hiding behind the skirts of solicitor-client privilege in order to hobble a lawsuit brought against it by a former government lawyer who claims the government impugned his conduct and attacked his character and reputation.
Alex Cameron, a 26-year veteran of the justice department, was the author of an infamous 2016 brief in the Alton gas project case.
The government had approved a plan by Alton Gas to store natural gas in salt caverns near the Shubenacadie River. The Sipekne’katik First Nation appealed, claimed it should have been consulted before any decision. Cameron countered, arguing on behalf of the government that it wasn’t required to consult with the First Nation over plans for the project because it was a “conquered people.”
Unsurprisingly, that contentious contention created a hornet’s nest of consternation — followed immediately by much government butt-covering and buck-passing.
McNeil himself offered his best “Who me?” He claimed — still claims — he had no idea his justice department planned to make such an argument. He told reporters at the time he would be “looking for an explanation” from the justice department.
Meanwhile, then-Justice Minister Diane Whalen — she who was in charge of the department and responsible for its arguments — offered up her own best “Wha…?”
Cameron’s brief, she declared, didn’t reflect the government’s position and she would be “asking more about what the process is and to be sure we are more sensitive.”
Wait a minute. Was she really saying she intended to ask for an explanation after her department had already made its argument? Shouldn’t she have…? But I digress.
The government quickly withdrew its legal brief, unceremoniously removed Cameron from the case and — he claims — forced him to retire in 2017.
Two days after his retirement, Cameron, who insisted he was only making the argument “in accordance with” instructions from his client (which is to say McNeil, Whalen, the justice department, et al), sued for abuse of public office, constructive dismissal and violations of his constitutional rights.
And that is where things got interesting — and messy.
The government claimed Cameron couldn’t talk about the instructions that were at the centre of his legal arguments because doing so would violate his solicitor-client relationship with the government. In other words, he couldn’t make the case that the government had impugned his reputation because doing so might disclose the fact the government told him to make the arguments it had since publicly disavowed and used to impugn his reputation.
Cameron’s lawyers challenged that argument, and the judge ruled in his favour, noting that the government had effectively waived its privilege when it publicly attacked Cameron.
The government appealed — ka-ching, ka-ching — and last week the appeal court once again sided with Cameron, ordering the government, McNeil and Whalen (which is to say me and thee) to pony up $20,000 for Cameron’s legal costs in fighting the appeal.
As Justice David Farrar summed up in the panel’s ruling: “It would be manifestly unfair to allow the province to hide behind solicitor-client privilege while at the same time impugning the conduct of its solicitor.”
The government can now waste more of our tax dollars by appealing the provincial appeal court’s decision to the Supreme Court of Canada. Or it could try to strike an out-of-court settlement of Cameron’s law suit, costing us more money but likely keeping any dirty laundry buried deep in the bin. Or it could accept the court’s decision and fight Cameron’s suit on its merits.
Are we sensing a pattern here?
Back in February, the Progressive Conservatives were forced to go to court to challenge the McNeil government’s decision to hide management-fee details of its contract with Bay Ferries to operate the Yarmouth-to-some-place-in-Maine ferry service. The provincial freedom of information and privacy officer had ruled the management fees should be released. The government said no and is now in court trying to prevent what should be public information from becoming so.
Ka-ching. Ka-ching. Our tax dollars at work…
This column originally appeared in the Halifax Examiner May 20, 2019.