This past November 25, the Supreme Court of Canada rendered a decision [1], in which it reiterated the importance of litigation privilege as a distinct principle from solicitor-client privilege, while also setting out the circumstances in which a court may make an exception to this privilege. This decision will be of interest to any litigant or lawyer who wants to assert that a document or information is privileged in the context of a civil proceeding or administrative or penal investigation.
A few words about litigation privilege
Litigation privilege is a common law rule of English origin. It gives rise to immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. The classic examples of items to which this privilege applies are the lawyer’s file and oral or written communications between a lawyer and third parties, such as witnesses or experts. Litigation privilege has sometimes been confused with solicitor-client privilege. Since the Supreme Court ruling in Blank c. Canada (Ministre de la Justice), 2006 CSC 39, it has been settled law that solicitor-client privilege and litigation privilege are distinguishable.
The facts
In July 2008, a fire damaged the residence of a person insured by an insurance company (‘’ the Insurer’’). The Insurer assigned one of its claims adjusters to investigate the claim. The assistant syndic of the Chambre de l’assurance de dommages later received information to the effect that the claims adjuster had made certain errors in managing the file. In the course of its inquiry, the syndic sent the Insurer a request in accordance with section 337 of the Act respecting the distribution of financial products and services for a [TRANSLATION] “complete copy of [its] file, both physical and electronic, for this claim”.
In response, the Insurer produced a number of documents, but explained that it had withheld some on the basis that they were covered either by solicitor-client privilege or by litigation privilege, given the litigation between the Insurer and the insured person.
In June 2012, the syndic applied for a declaratory judgment against the Insurer in order to obtain the documents it sought. The question raised in these proceedings was essentially whether the Insurer was entitled to assert litigation privilege against the syndic, despite the investigative powers conferred on the syndic by the legislature, including the power to request the production of “any document”. The Superior Court concluded that litigation privilege cannot be abrogated absent an express provision. The Court of Appeal upheld this judgment. It held that even though litigation privilege is distinguishable from solicitor-client privilege, it is, to the same extent, a fundamentally important principle that cannot be overridden without express language.
The principles set out by the Supreme Court
In its analysis, the Court recalled the basis of litigation privilege before restating the principles set out in Blank about the distinctions between litigation and solicitor-client privilege:
- The purpose of solicitor-client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process;
- Solicitor-client privilege is permanent, whereas litigation privilege is temporary and lapses when the litigation ends;
- Litigation privilege applies to unrepresented parties, even where there is no need to protect access to legal services;
- Litigation privilege applies to non-confidential documents;
- Litigation privilege is not directed at communications between solicitors and clients as such.
In response to the syndic’s argument, the Court noted that “litigation privilege can be asserted against anyone, including administrative or criminal investigators, not just against the other party to the litigation”.
In conclusion, in the Court’s view, litigation privilege cannot be lifted absent a clear, explicit and unequivocal provision to that effect. In this matter, because section 337 of the Act respecting the distribution of financial products and services provides only for the production of “any document” without further precision, it does not have the effect of abrogating the privilege.
[1] 2016 CSC 52
