Judge erred in finding that undisclosed documents were subject to litigation brief privilege

Federal appeal | Civil Procedure

DISCOVERY
Judge erred in finding that undisclosed documents were subject to litigation brief privilege
During protracted discovery process, plaintiffs came into possession of documents that defendant Canada alleged were privileged. Canada sought order for return of all privileged documents while plaintiffs sought order requiring Canada to produce other documents over which Canada claimed privilege and had not produced. Plaintiffs’ motion was dismissed and Canada’s motion was allowed in part. Prothonotary found that Canada failed to establish litigation brief or settlement privilege but found that documents were subject to solicitor-client privilege and were to be returned to Canada. Prothonotary found there was no waiver of privilege. Plaintiffs appealed prothonotary’s decision. Appeal was dismissed. Judge upheld Canada’s claim that certain documents were protected from disclosure on basis that they were subject to litigation brief privilege and upheld Canada’s claim to solicitor-client privilege over documents Canada itself disclosed to plaintiffs. Plaintiffs appealed. Appeal allowed. Judge erred in finding that Canada established that undisclosed documents were subject to litigation brief privilege. Contents of documents did not establish that it was more likely than not that each document was prepared for dominant purpose of seeking legal advice or aiding in conduct of litigation. Claim to litigation privilege was disallowed. Evidence did not support judge’s finding that all of allegedly privileged documents were inadvertently disclosed in context where there was no intention to waive privilege. Evidence fell short of establishing that disclosure was inadvertent. There was no direct evidence that Canada did not intend to waive claim to privilege. Canada’s claim to solicitor-client privilege had been waived in respect of all documents at issue that were disclosed to plaintiffs.
Chemawawin First Nation v. R. (Sep. 12, 2014, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and David Stratas J.A., File No. A-350-12, A-351-12, A-358-12) Decision at 220 A.C.W.S. (3d) 505 was reversed.  244 A.C.W.S. (3d) 809.

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