Focus On

Civil Litigation - CIVIL PROCEDURE - Discovery - Production and inspection of documents - Privileged documents - Documents prepared in contemplation of litigation - Solicitor-client privilege

Thursday, December 15, 2016 @ 7:00 PM  


Appeal by the assistant syndic of the Chambre de l’assurance de dommages (syndic) from a decision of the Court of Appeal setting aside in part a Superior Court declaratory judgment. In the course of an inquiry into the conduct of a claims adjuster, the syndic asked an insurer, Aviva, to send her a complete copy of its claim file with respect to one of its insured. Aviva produced a number of documents, but explained that it had withheld some on the basis that they were covered either by solicitor-client privilege or by litigation privilege. The syndic applied for a declaratory judgment against Aviva in order to obtain the documents it sought. The syndic argued that s. 337 of the Act respecting the distribution of financial products and services (ADFPS) created an obligation to produce “any ... document” concerning the activities of a representative whose professional conduct was being investigated by the Chamber, and that this was sufficient to lift the privilege. In the syndic’s opinion, litigation privilege could be distinguished from solicitor-client privilege; it was less important and was not absolute, and should therefore be applied more flexibly. The Superior Court held that an authority could not pierce solicitor-client privilege absent express words in the applicable legislation. The motion judge determined that these principles also applied to litigation privilege. Since the ADFPS contained no express abrogation, both solicitor-client privilege and litigation privilege could be asserted against the syndic of the Chamber. The Court of Appeal upheld this judgment. The Court held that even though litigation privilege was distinguishable from solicitor-client privilege, it was, to the same extent, a fundamentally important principle that could not be overridden without express language. The Court allowed the appeal, but solely to amend the terminology of the motion judge’s conclusion. The issue in this appeal was whether Aviva could assert litigation privilege against the syndic in the context of a request for documents relating to a claim file.

HELD: Appeal dismissed. Litigation privilege protected against the compulsory disclosure of communications and documents whose dominant purpose was preparation for litigation. It was a class privilege that exempted the communications and documents that fell within its scope from compulsory disclosure, except where one of the limited exceptions to non-disclosure applied. The onus was not on a party asserting litigation privilege to prove on a case-by-case basis that the privilege should apply in light of the facts of the case and the “public interests” that were at issue. Any document that met the conditions for the application of litigation privilege would be protected by an immunity from disclosure unless the case was one to which one of the exceptions to that privilege applied. Litigation privilege was subject to clearly defined exceptions, not to a case-by-case balancing test. Furthermore, litigation privilege could be asserted against anyone, including administrative or criminal investigators, not just against the other party to the litigation. The courts below were right to hold that the litigation privilege invoked by Aviva could be asserted against the syndic. None of the exceptions to its application justified lifting the privilege in this case. Since the decision in Blood Tribe, it had been settled law that any legislative provision capable of interfering with solicitor-client privilege must be read narrowly and that a legislature may not abrogate that privilege by inference, but may only do so using clear, explicit and unequivocal language. The requirements discussed in Blood Tribe applied with equal force to litigation privilege. Although there were differences between solicitor-client privilege and litigation privilege, the latter was inextricably linked to certain founding values and was of fundamental importance. Like solicitor-client privilege, it could not be abrogated by inference and clear, explicit and unequivocal language was required in order to lift it. Section 337 of the ADFPS, on which the syndic relied, merely authorized a request for the production of “any ... document” without further precision. The provision did not contain sufficiently clear, explicit and unequivocal language to abrogate litigation privilege. It followed that Aviva was entitled to assert litigation privilege in this case and to refuse to provide the syndic with the documents that fell within the scope of that privilege.