Focus On

Civil Litigation - Civil procedure - Discovery - Production and inspection of documents - Privileged documents - Crown privilege or public interest - Documents prepared in contemplation of litigation

Thursday, September 08, 2016 @ 8:00 PM  


Appeals by the federal and provincial Crown defendants from a documentary production ruling involving determination of the scope of litigation privilege. The plaintiff’s daughter and another individual were shot and killed in their home. The Crown believed the murder arose from the daughter’s involvement in a marijuana grow operation. A neighbour reported the gunshots to police. RCMP attended the neighbourhood but did not speak to the neighbour and left the scene after failing to detect evidence of a shooting. The plaintiff’s daughter was paralyzed in the shooting and unable to call for assistance. She was found by a neighbour four days later and died en route to hospital. Four individuals were charged in connection with the shootings. Three individuals pled guilty and the alleged mastermind behind the shootings awaited trial. In 2011, the plaintiff filed a notice of civil claim on behalf of her daughter’s estate seeking damages based on inadequate investigation of the shooting by the police. The plaintiff received disclosure comprised of the RCMP investigative file, police disciplinary files, and documentation of internal and external reviews of the incident. The plaintiff applied for production of documents contained in two RCMP investigative briefs prepared for the criminal prosecution of those responsible for the murders. The Crown defendants took the position that the documents were subject to litigation privilege, as the briefs contained information that would corroborate evidence of key witnesses, including the plaintiff. In ordering partial disclosure, the chambers judge found that the asserted litigation privilege did not apply to the plaintiff as a non-party to the criminal proceeding. Public interest immunity could be overcome with appropriate redactions and restrictions on use of the documents. The Crown defendants appealed.

HELD: Appeals allowed. The chambers judge erred in law in limiting the scope of litigation privilege to an adversarial party. Limiting the scope of the privilege to the litigation adversary risked eradicating the zone of privacy the privilege was designed to protect. To maintain the essential zone of privacy, litigation privilege, while operative, was capable of assertion against anyone. In addition, the chambers judge erred by resolving the litigation privilege and public interest immunity claims without first requiring the parties to list the documents that were the subject of the plaintiff’s application. The chambers judge’s order was set aside and the matter was remitted to the Supreme Court, as the factual record was insufficient to determine the case-specific issues.