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Speaker's Corner: Filling in the blanks for litigation privilege

|Written By Dale E. Ives & Stephen G.A. Pitel

Over the past decade the Supreme Court of Canada has decided several cases dealing with the parameters of solicitor-client privilege. In September''s Blank v. Canada (Minister of Justice), the court turned its attention to another of the class privileges, litigation privilege.

The central issue in Blank was straightforward, but the court took the opportunity to give binding guidance on several important issues related to litigation privilege. But some aspects of the court's reasoning are ambiguous and controversial.

It is well established that litigation privilege protects communications between a lawyer and a third party, such as an investigator, adjuster, or medical adviser, when the communication is for the purpose of ongoing or anticipated litigation. The central issue in Blank was whether this litigation privilege survives beyond the end of the particular case. It was reasonably well established that it did not, and the court unsurprisingly accepted that view, thus ending what little debate may have remained.

Of greater interest, the court goes on to provide guidance on three further issues. First, the court offered a tentative view on the issue of ingathered documents: documents that are gathered or copied, rather than created, by a lawyer for the purpose of litigation.

Canadian courts are quite divided on this issue. In Hodgkinson v. Simms (1998), a majority of the British Columbia Court of Appeal held that where a lawyer "exercising legal knowledge, skill, judgment, and industry" assembles a collection of relevant copies of documents for the purpose of litigation the documents are privileged.

In 1999's General Accident Assurance Co v. Chrusz, a majority of the Court of Appeal for Ontario reached the opposite conclusion, holding that non-privileged documents could not become privileged by being given to, or collected by, a lawyer.

Although in Blank the court expressly stated that this issue should be left to be resolved in a future case, it could not resist noting that "extending the privilege to the gathering of documents resulting from research or the exercise of skill and knowledge does appear to be more consistent with the rationale and purpose of the litigation privilege."

Contrary to the court's suggestion, there is much to commend the narrower view articulated in Chrusz. However, the court has at least recognized that it is not all collections of documents that deserve protection, an interpretation sometimes erroneously ascribed to Hodgkinson, but only those collections that involved the exercise of legal research, skill or knowledge.

It is only in this instance that the collection may reveal information about the lawyer's thoughts, opinions and strategies, which is what the privilege is intended to protect. This will undoubtedly involve the courts at times in fine-line-drawing exercises, but this is inevitable if the boundaries of the privilege are not to be drawn too broadly.

Second, the court rejects an overly technical approach to identifying when litigation has ended, so as to end the litigation privilege. The court acknowledges that "closely related proceedings" remaining ongoing would preserve the privilege. The court refers to this as an "enlarged definition" of litigation, and explains it as including both (a) separate proceedings involving the same or related parties and causes of action, and (b) proceedings raising issues common to the initial action and sharing its "essential purpose."

It offers two examples. In the first, a government faces several actions arising from damage caused by one of its programs, such as the use of urea formaldehyde foam insulation. In the second, a manufacturer is defending several product liability actions raising the same claims. In each, the resolution of one of the actions would not end the defendant's litigation privilege over the documents for that action; they would remain inaccessible to the plaintiffs in the remaining ongoing actions.

This development raises an interesting question. While the enlarged definition seems sensible in the context of the examples listed by the court, it is open to question how it will apply to anticipated litigation.

Litigation privilege applies equally to reasonably contemplated litigation and to ongoing litigation. Whether litigation is anticipated is a question of fact in each case. If a product liability case ends, but the manufacturer thinks it highly likely that similar claims will be made in the future, does the privilege continue? The lower court decisions offer only limited assistance on this point. Nor is there any useful academic commentary.

Both the current test and rationale for the privilege - protecting strategic preparations for trial - suggest that the privilege should continue, but this might end up casting the privilege quite widely.

Third, the court states that "litigation privilege would not in any event protect from disclosure evidence of the claimant party's abuse of process or similar blameworthy conduct." No authority is offered for this proposition.

There is lower court authority, albeit limited, in the context of solicitor-client privilege for extending the recognized future crimes and fraud exception to other forms of actionable misconduct. The rationale is that giving advice to facilitate unlawful conduct of any type is no more within the professional role of a lawyer than giving advice to facilitate the commission of a crime or fraud.

However, adopting this approach to its fullest extent would represent a significant and unwarranted expansion of the existing exception. A more limited extension of the exception to exclude communications in furtherance of a malicious prosecution or abuse of process is more defensible, given that these claims go to the very heart of the administration of justice.

Sufficient protection still remains, since a mere allegation of the actionable misconduct is not enough: a party must, as the court rightly asserted, demonstrate an evidentiary foundation for the claim. This hurdle will often not be met, as Blank itself indicates.

Moreover, in many cases involving such allegations, reliance on the exception will be unnecessary because the initial proceeding will have ended at the time the claim is brought. However, it may be of relevance in cases where a claim is brought while a prosecution is ongoing or in complex prosecutions involving multiple accused.

On its central point, Blank does not fill in any new answers. But in passing the court has done much to clarify some key aspects of the law of litigation privilege. Its observation, however tentative, that ingathered documents are caught by the privilege is significant. Its extension of the privilege to related litigation and its suggestion that the privilege can be circumvented on a showing of actionable misconduct warrant fuller analysis.


Professors Dale E. Ives and Stephen G.A. Pitel are both at the faculty of law at the University of Western Ontario. This is an edited version of a longer case comment, which will be published in the International Journal of Evidence and Proof.

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