The issue on this Appeal was whether the solicitor-client privilege that was admitted to exist over certain notes prepared by a solicitor had been waived, or was otherwise unenforceable.

The Case Management Judge had granted a Restricted Court Access Order (“RCAO”). In the reasons for granting the RCAO, the parties were referred to by pseudonym. Rule 6.28 contemplates RCAOs and the use of pseudonyms, and the Court of Appeal noted that a RCAO should only be granted when (a) such an Order is necessary to prevent a serious risk to an important interest; and (b) the salutary effects of the RCAO outweigh its deleterious effects, including the effects on the right to free expression. The Court of Appeal determined that solicitor-client privilege was a sufficiently “important interest” to meet this test. The Court of Appeal added that an Order sealing the privileged notes was appropriate, but not an Order sealing the entire Court file, or all of the proceedings.

The Court of Appeal underscored that the media had not been provided notice of the RCAO, as required by Rule 6.32, and added that giving the media notice is an important aspect of the procedure, enabling a proper balancing of competing public interests, and that the RCAO should not have been issued absent media notice.

Lastly, the Court of Appeal noted that, pursuant to Rule 14.83, a RCAO made by the Trial Court continues to apply during the Appeal. After reviewing submissions from one of the parties, the Court of Appeal determined that it was not necessary to continue using pseudonyms.

The Court of Appeal ultimately dismissed the Appeal, stating that an RCAO would be issued, and that the Appellants had not established that privilege over the notes had been waived.