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SCC sets limits on litigation privilege

|Written By Helen Burnett

The Supreme Court of Canada has taken a look at the characteristics of litigation privilege for the first time and ruled that, unlike solicitor-client privilege, its protection ends along with the related litigation.

Wendy Matheson says the Advocates

The definition of litigation privilege came into question in the recent case of Blank v. Canada (Minister of Justice).

In 1995, the Crown laid 13 charges against the respondent in this case, Sheldon Blank, and Gateway Industries for alleged breaches of reporting requirements and alleged pollution of the Red River. These charges were subsequently quashed in 1997 and 2001.

The Crown laid new charges against the respondent in 2002 and stayed them prior to trial. Blank and Gateway then sued the federal government in damages for fraud, conspiracy, perjury, and abuse of its prosecutorial powers, according to the decision.

Blank then attempted to obtain documents from the government relating to the Crown's conduct of proceedings against him, but only succeeded in obtaining certain documents, as some requested under the Access Act were subject to solicitor-client privilege. He later made an application for review, where the motions judge found that any documents subject to litigation privilege should be released once the related litigation was over.

The case then went to the Federal Court of Appeal, which was divided on what the duration of litigation privilege should be, but found that litigation privilege expires with the end of the related litigation. The appellant then took the case to the Supreme Court, and claimed litigation privilege under s. 23 of the Access to Information Act.

According to that section, "the head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege."

The Supreme Court ruled that the appeal should be dismissed, on the grounds that "the Minister's claim of litigation privilege fails in this case because the privilege claimed, by whatever name, has expired: The files to which the respondent seeks access relate to penal proceedings that have long terminated."

The issue before the court related to the characteristics and lifespan of litigation privilege. More specifically, the question arose of whether litigation privilege comes to an end when the litigation it relates to is finished.

The Sept. 8 Supreme Court decision noted that "the purpose of the litigation privilege is to create a zone of privacy in relation to pending or apprehended litigation. The common law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege. Unlike the solicitor-client privilege, it is neither absolute in scope nor permanent in duration."

In the reasons for judgment, Justice Morris Fish noted "thus, the principle 'once privileged, always privileged,' so vital to the solicitor-client privilege, is foreign to the litigation privilege. The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration."

David Outerbridge and Wendy Matheson of Torys LLP represented the Advocates' Society, which acted as an intervener in the case. "In this case," says Matheson, "the parties were taking, each of them, extreme positions, the appellant advocating for a very broad interpretation of litigation privilege and the respondent a very narrow interpretation, and the Advocates' Society was urging the court to take a different position from both the parties and to extend litigation privilege to related litigation."

Matheson says the Advocates' Society was also concerned that the court take into account the reality of modern litigation, including parallel proceedings and overlapping litigation.

According to Justice Fish, "the privilege may retain its purpose - and, therefore, its effect - where the litigation that gave rise to the privilege has ended, but related litigation remains pending."

He added, "The purpose of the litigation privilege, I repeat, is to create a 'zone of privacy' in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose - and therefore its justification. But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have 'terminated,' in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat."

The Office of the Information Commissioner of Canada also acted as an intervener in the case and was represented by Daniel Brunet, director of legal services. 

Brunet says, "On the pure legal issue of litigation privilege, it is the first time that the matter has come before the Supreme Court of Canada and the decision is very helpful, because it has determined clearly what is the rationale for this privilege - the nature, the scope, the duration. I think it is going to be helpful for all litigants."

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