PART 10 – GENERAL

Enforcement

85 (1) A person commits an offence if the person

(a) contravenes section 15, or

(b) uses or discloses information contrary to section 88 (3) or (4).

(2) If an offence under this Act is committed by a corporation, each director, manager, secretary or other officer of that corporation who has assented to the commission of the offence is a party to that offence.

(3) An information alleging an offence against this Act may be laid in the name of the society on oath or by affirmation of the executive director or of a person authorized by the benchers.

(4) Section 5 of the Offence Act does not apply to this Act or to the rules.

(5) The society may apply to the Supreme Court for an injunction restraining a person from contravening this Act or the rules.

(6) The court may grant an injunction sought under subsection (5) if satisfied that there is reason to believe that there has been or will be a contravention of this Act or the rules.

(7) The court may grant an interim injunction until the outcome of an action commenced under subsection (5).

(8) On the application of the society or a person interested in the proceeding, the court in which a proceeding is brought may find a person in breach of section 15 (5) to be in contempt and may punish that person accordingly.

Protection against actions

86 (1) No action for damages lies against a person, for anything done or not done in good faith while acting or purporting to act on behalf of the society or the foundation under this Act.

(2) The society or the foundation, as the case may be, must indemnify a person referred to in subsection (1) for any costs or expenses incurred by the person in any legal proceedings taken for anything done or not done in good faith while acting or purporting to act on behalf of the society or the foundation under this Act.

Certain matters privileged

87 (1) In this section:

"proceeding" does not include a proceeding under Part 2, 3 or 4;

"report" includes any document, minute, note, correspondence or memorandum created or received by a person, committee, panel or agent of the society in the course of an investigation, audit, inquiry or hearing, but does not include an original document that belongs to a complainant or respondent or to a person other than an employee or agent of the society.

(2) If a person has made a complaint to the society respecting a lawyer, neither the society nor the complainant can be required to disclose or produce the complaint and the complaint is not admissible in any proceeding, except with the written consent of the complainant.

(3) If a lawyer responds to the society in respect of a complaint or investigation, neither the lawyer nor the society can be required to disclose or produce the response or a copy or summary of it and the response or a copy or summary of it is not admissible in any proceeding, except with the written consent of the lawyer, even though the executive director may have delivered a copy or a summary of the response to the complainant.

(4) If a person, committee or panel acting under the authority of this Act makes a report or conducts an investigation, audit, inquiry or hearing into the conduct, competence or credentials of a lawyer, that report must not be required to be produced and is not admissible in any proceeding except with the written consent of the executive director.

(5) The society, its employees or agents, or persons who are members of committees or panels established or authorized under this Act must not be compelled to testify in any proceeding or to disclose information that they may have acquired during the course of an investigation, audit, inquiry, hearing or the performance of other duties authorized by this Act or the rules.

Non-disclosure of privileged and confidential information

88 (1) A lawyer who, in accordance with this Act and the rules, provides the society with any information, files or records that are confidential, or subject to a solicitor client privilege, is deemed conclusively not to have breached any duty or obligation that would otherwise have been owed to the society or the client not to disclose the information, files or records.

(2) Despite section 14 of the Freedom of Information and Protection of Privacy Act, a person who, in the course of carrying out duties under this Act, acquires information, files or records that are confidential or are subject to solicitor client privilege has the same obligation respecting the disclosure of that information as the person from whom the information, files or records were obtained.

(3) A person who, during the course of an investigation, audit, inquiry or hearing under this Act, acquires information or records that are confidential or subject to solicitor client privilege must not disclose that information or those records to any person except for a purpose contemplated by this Act or the rules.

(4) A person who, during the course of an appeal under section 48 or an application under the Judicial Review Procedure Act respecting a matter under this Act, acquires information or records that are confidential or are subject to solicitor client privilege must not

(a) use the information other than for the purpose for which it was obtained, or

(b) disclose the information to any person.

(5) The Court of Appeal, on an appeal under section 48, and the Supreme Court, on an application under the Judicial Review Procedure Act respecting a matter under this Act, may exclude members of the public from the hearing of the appeal or application if the court considers the exclusion is necessary to prevent the disclosure of information, files or records that are confidential or subject to solicitor client privilege.

(6) In giving reasons for judgment on an appeal or application referred to in subsection (5), the Court of Appeal or the Supreme Court must take all reasonable precautions to avoid including in those reasons any information before the court on the appeal or application that is confidential or subject to solicitor client privilege.

(7) Despite section 14 of the Freedom of Information and Protection of Privacy Act, the benchers may make rules for the purpose of ensuring the non-disclosure of any confidential information or information that, but for this Act, would be subject to solicitor client privilege, and the rules may be made applicable to any person who, in the course of any proceeding under this Act, would acquire the confidential or privileged information.

(8) Section 47 (4) of the Freedom of Information and Protection of Privacy Act does not apply to information that, but for this Act and the production of the information to the commissioner under that Act, would be subject to solicitor client privilege.

Confidential documents

89 (1) If a lawyer is served with an order made under section 37 (1) or (3) or 41 (2) (b), or required to provide access to information, files or records under section 27 (2) (c), and the lawyer objects to producing or providing access to a document on the grounds that the document is confidential and that a client objects to its disclosure, the document must be sealed without inspection or copying and placed into the custody of

(a) any member in good standing of the society acceptable to both the lawyer and the society, or

(b) a sheriff.

(2) If a document is sealed under subsection (1), the lawyer must provide the society with the name and address of the client whose document it is.

(3) The person who has custody of a sealed document must return the document to the lawyer unless within 30 days the society delivers to the person having custody

(a) a written waiver of confidentiality signed by the client, or

(b) the executive director's certification that the client has been contacted and has given an oral waiver of confidentiality.

(4) If subsection (3) (a) or (b) applies, the person who has custody must deliver the document to the executive director.

(5) A judge or master of the Supreme Court may, on application,

(a) extend the time period referred to in subsection (3),

(b) if the client cannot be located, order that the sealed document be delivered to the society on conditions as to notice or substitutional service that the judge or master considers appropriate, and

(c) examine the sealed document and any affidavit evidence that the judge or master considers relevant, and

(i) if the judge or master considers that the document should not be disclosed, ensure that it is resealed and order the person who has custody to return the document to the lawyer, or

(ii) if the judge or master considers that the document should be disclosed, order the person who has custody to deliver the document to the executive director, subject to any restrictions or conditions that the judge or master considers appropriate.

Service

90 The benchers may make rules respecting service of documents under this Act.

[2007-14-145]

Law society insurance

91 (1) The benchers may purchase and maintain insurance protecting the society, the benchers, officers and employees of the society and former benchers, officers and employees against liability arising out of the operations or activities of the society and providing for indemnity with respect to any claims arising out of acts done or not done by those individuals in good faith while acting or purporting to act on behalf of the society.

(2) The benchers may enter into, on behalf of members, contracts of life, accident, income replacement and any other type of insurance that they consider will benefit the members.

Legal archives

92 (1) The benchers may make rules permitting a lawyer to deposit records in the possession of the lawyer in an archives, library or records management office in Canada.

(2) Rules made under this section may provide for

(a) the time after which the records may be deposited,

(b) the restrictions or limitations on public access that the lawyer may attach on depositing them, and

(c) circumstances under which the lawyer cannot be liable for disclosure of confidential or privileged information arising out of the deposit.

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Part 10 out of 11 parts in the Legal Profession Act