Supreme Court


Evidence

Privilege

Privileged communications

Litigation privilege invoked by insurer could be asserted

Litigation privilege. Fire damaged residence and one of insurer’s claims adjusters investigated claim. Syndic of Chambre de l’assurance de dommages later received information to effect that adjuster had made certain errors in managing file. In course of her inquiry, syndic asked insurer to send her complete copy of its claim file. Insurer refused to do so on basis that some of requested documents were protected by litigation privilege. Syndic filed motion for declaratory judgment, arguing that s. 337 of Act respecting the distribution of financial products and services (Que.) created obligation to produce “any (…) document” concerning activities of representative whose professional conduct was being investigated. Syndic further argued that litigation privilege should be applied more flexibly than solicitor-client privilege as it was less important. Trial judge concluded that litigation privilege could not be abrogated absent express provision and syndic appealed. Court of Appeal upheld trial judge’s judgment. Syndic appealed before Supreme Court of Canada. Appeal dismissed. Litigation privilege is fundamental principle of administration of justice . It is class privilege that exempts communications and documents that fall within its scope from compulsory disclosure, except where one of limited exceptions to non-disclosure applies. Any legislative provision capable of interfering with litigation privilege should be read narrowly. Legislature may not abrogate that privilege by inference, but may only do so using clear, explicit and unequivocal language. Because s. 337 of Act provided only for production of “any (…) document” without further precision, it did not have effect of abrogating privilege. It followed that insurer was entitled to assert litigation privilege in this case and to refuse to provide syndic with documents that fell within scope of litigation privilege. None of exceptions to its application justified lifting privilege in this case. Therefore, courts below were right to hold that litigation privilege invoked by insurer could be asserted against syndic.

Lizotte c. Aviva Cie d’assurance du Canada (2016), 2016 CarswellQue 10692, 2016 CarswellQue 10693, 2016 SCC 52, 2016 CSC 52, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellQue 384, 2015 QCCA 152, Bich J.C.A., St-Pierre J.C.A., and Gagnon J.C.A. (C.A. Que.).

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