Canada: Supreme Court Of Canada Narrows Definition Of Litigation Privilege

Last Updated: October 10 2006

Minister of Justice v. Blank, 2003 FCT 462, rev’d 2004 FCA 287, appeal dismissed 2006 SCC 39

In its recent decision in Minister of Justice v. Blank, the Supreme Court of Canada set limits on the scope of the privilege that attaches to documents prepared for litigation. At issue were two competing conceptions of litigation privilege; the Supreme Court endorsed a narrower view of the privilege, finding that it expires when the litigation giving rise to it comes to an end.

The heart of the issue is whether litigation privilege is predicated on a different basis than solicitor-client privilege. Solicitor-client privilege protects the confidentiality of communications between a lawyer and a client for the purposes of obtaining legal advice, in order to allow clients to speak with absolute candour to their legal advisers. It is indefinite in its duration. Litigation privilege, on the other hand, protects documents prepared for the purposes of actual or contemplated litigation. It has been unclear – until now – whether the protection afforded by litigation privilege is confined to the duration of the proceedings in which the documents arose or, like solicitor-client privilege, lasts indefinitely.

The Blank case began when Gateway Industries, a company of which Blank was a director, was charged with offences under federal environmental legislation. The charges were ultimately quashed. Blank brought a civil action against the federal government, alleging fraud, conspiracy, perjury and abuse of prosecutorial powers, and also made a number of access-to-information requests for records pertaining to the prosecutions. Some documents were disclosed by the government, but there were significant omissions. Blank complained to the Information Commissioner, and further documents were released. Blank then applied to the Federal Court for judicial review of the government’s continued reliance on disclosure exemptions with respect to certain documents.

On that application, the judge ordered the release of a number of documents, on the grounds that they had been disclosed for the purposes of the criminal and civil proceedings or because they were already in Blank’s possession. One of the issues that arose – and that was the central issue in the Supreme Court – is whether litigation privilege over those documents had, in fact, come to an end because the specific proceedings to which they related had concluded.

The majority of the Federal Court of Appeal (Létourneau J.A. dissenting) held that the protection of litigation privilege had terminated, subject to the possibility that one might define litigation more broadly to include not only the particular proceeding which gave rise to the claim. The rationale for this view is essentially that the purpose of litigation privilege is to protect the adversarial nature of the litigation process: once the litigation itself is over, there is arguably no further need for privilege to apply.

This is an important issue, especially where litigants are involved in recurring or related proceedings that involve the same legal, policy and strategic considerations. If litigation privilege does terminate with an individual segment of what may be a longer series of related proceedings, a litigant (particularly a defendant) may be at a significant strategic disadvantage in no longer being able to assert the protection of privilege over documents prepared for the purposes of the earlier proceedings but which are relevant in a subsequent case of a similar nature.

The competing view, espoused by Justice Létourneau in the Federal Court of Appeal, is that litigation privilege is not time-limited. Under this view, litigation privilege and solicitor-client privilege share the same foundation in the need for confidentiality and candour between lawyer and client, for the purpose of obtaining legal advice. Where the two branches of privilege differ is in scope. Litigation privilege is broader, in that it extends protection to the contents of the lawyer’s brief, which may include communications between counsel and necessary third parties – which solicitor-client privilege would not typically cover. Otherwise, however, on this theory the two branches of privilege share the same rationale, and there is no reason to bring litigation privilege to an untimely end. Litigation privilege should, under this interpretation, enjoy the same permanence as solicitor-client privilege, given that the policy behind them is the same.

The Supreme Court of Canada dismissed the appeal, in two sets of concurring reasons. Mr. Justice Fish (McLachlin CJC and Binnie, Deschamps and Abella JJ, concurring) held that the two types of privilege are conceptually distinct, "not … two branches of the same tree.". Solicitor-client privilege is rooted in the fundamental necessity of full and frank communication between lawyer and client, which is necessary for the administration of justice. The goal of litigation privilege is to "ensure the efficacy of the adversarial process,", not to protect the solicitor-client relationship itself.

Justice Fish noted some significant differences between the two types of privilege:

  • litigation privilege, unlike solicitor-client privilege, may involve non-confidential communications between the lawyer or the litigant and third parties;
  • litigation privilege arises only in the context of pending litigation, not whenever a client seeks legal advice from a lawyer – and indeed it can operate in the absence of a solicitor-client relationship (for example, where the litigant is not represented by counsel);
  • most importantly, litigation privilege has a different underlying rationale, in that it is intended to enhance the adversarial process – not, as with solicitor-client privilege, to protect a confidential relationship between lawyer and client.

The two privileges are complementary, but distinct. As a result, the "zone of privacy" created by litigation comes to an end with the litigation itself.

Justice Fish did recognise, however, that litigation privilege will not terminate where "closely" related litigation exists or may be reasonably apprehended, and the parties may be said to be "locked in what is essentially the same combat.". Related proceedings would include those involving the same parties, the same or a related cause of action, issues common to the initial action or the same "essential purpose" as the original proceedings. (This provides some guidance for litigants and their counsel, but naturally there will be grey areas where it will be difficult to say whether proceedings are sufficiently closely related.)

Justice Fish also affirmed the principle that litigation privilege will arise where documents are prepared for the "dominant purpose" of litigation, rejecting the broader "substantial purpose" test.

Finally, Fish J. referred to the contentious issue of whether copies of documents could be subject to litigation privilege. Without deciding the issue, he suggested that this is at least a possibility and in line with the rationale behind the privilege.

Justices Bastarache and Charron concurred in the result, but took a different approach to get there, based in part on their interpretation of the Access to Information Act. In their view the statute’s exemption allowing the government to refuse to disclose documents where solicitor-client litigation privilege was found to exist also extended to litigation privilege. Justices Bastarache and Charron therefore differed from their colleagues in espousing the "two branches" theory of privilege, but like their colleagues they concluded that in this case litigation privilege had expired with the conclusion of the proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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