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.

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Criminal lawyers wary of sharing contact tracing with law enforcement

LSO should pay $46K to lawyer, tribunal says

Tribunal finds that spilling tea while stopped at a red light is not an automobile accident

Workplace safety tribunal shares best practices for teleconference hearings

Law foundation approves grants for investor rights projects of UToronto Law, Osgoode and others

Ontario Bar Association hosts free online information sessions on elder law for Seniors’ Month

Most Read Articles

List of resources for lawyers on how to be an ally to racialized colleagues

LSO should pay $46K to lawyer, tribunal says

Canadian Association of Black Lawyers to host mental health webinar

Criminal lawyers wary of sharing contact tracing with law enforcement