Canada: SCC Upholds Solicitor-Client, Litigation Privilege In Recent Rulings

In two decisions released on November 25, 2016, the Supreme Court of Canada (SCC) affirmed the fundamental importance of litigation privilege and solicitor-client privilege. In Lizotte v. Aviva Insurance Company of Canada (Lizotte), the SCC dealt with issues relating to the breadth of litigation privilege and confirmed that it exists as a stand-alone privilege under Quebec law, while in Alberta (Information and Privacy Commissioner) v. University of Calgary (Alberta), the SCC dealt with issues relating to the sanctity of solicitor-client privilege. In each case, the SCC emphasized that such privileges may be abrogated only by statute where there is clear, explicit and unequivocal language indicating that abrogation of the privilege was the legislative intent.


In the course of an inquiry into an insurance claims adjudicator, the assistant syndic of the Chambre de l'assurance de dommages (Chambre), the Quebec self-regulatory body that oversees the conduct of insurers, asked Aviva Insurance Company (Aviva) to produce a complete copy of the claim file with respect to an insured. This request was made pursuant to section 337 of the Act respecting the distribution of financial products and services (ADFPS), which creates an obligation for the insurer to produce any document concerning the activities of a representative whose professional conduct is being investigated by the Chambre. Aviva refused to produce certain documents on the basis of litigation privilege, given ongoing litigation involving the insured. The Chambre syndic brought a motion to obtain the documents on the basis that the production obligation set out in section 337 overrides litigation privilege. Before the motion was heard, the litigation between the insured and Aviva settled, and Aviva produced the documents. However, the syndic proceeded with its motion, and the Superior Court found this was a "genuine problem" worth deciding.

Both the Québec Superior Court and Court of Appeal ruled in Aviva's favour, finding that litigation privilege cannot be abrogated absent an express provision.

The SCC agreed. Importantly, Justice C. Gascon for the SCC clarified that the differences between solicitor-client and litigation privilege identified in Blank v. Canada (Minister of Justice) have been adopted in Quebec law, and litigation privilege is not merely a subcategory of civil law professional secrecy but a stand-alone privilege. Justice Gascon went on to make three important comments about litigation privilege:

  1. Litigation privilege is a class privilege. As a class privilege, once the conditions for its application are met (namely, once a document has been created for the dominant purpose of litigation and the litigation in question is pending or may reasonably be apprehended), there is a presumption of non-disclosure.
  2. Although litigation privilege is subject to the same clearly defined exceptions as solicitor-client privilege, it is not subject to a case-by-case balancing test. The exercise of balancing competing interests is associated with case-by-case privileges, not class privileges. The SCC refused to define any new exceptions to litigation privilege in this case as it was not warranted on the facts.
  3. Litigation privilege can be asserted not just against parties to the litigation, but also as against third parties, including third-party investigators who have a duty of confidentiality. In arriving at this conclusion, Justice Gascon explained that the open court principle would apply to proceedings initiated by the syndic and that it is far from certain that privileged documents would remain protected in that context. Therefore, a duty of confidentiality on the part of the investigator does not sufficiently protect privileged documents. More generally, the SCC recognized a possible chilling effect if a party's work could be used by the syndic to prepare for litigation, as this could discourage that party from committing preparatory work to writing.

In light of the above and the important purpose of litigation privilege, to ensure the efficacy of the adversarial process, Justice Gascon concluded that the legislature may abrogate litigation privilege by statute only with "clear, explicit and unequivocal language." A statute simply requiring the production of any document is insufficient.


A former University of Calgary (University) employee made a request for access to information under Alberta's Freedom of Information and Protection of Privacy Act (FOIPP). The University refused to produce certain documents on the basis of solicitor-client privilege. The former employee brought an application under FOIPP seeking production of the remaining records, and a delegate of the Information and Privacy Commissioner of Alberta (Commissioner) conducted an inquiry into the matter. In order to assess the claim of privilege, the Commissioner ordered the production of the documents pursuant to section 56(3) of FOIPP, which states that production to the Commissioner is required "despite any other enactment or any privilege of the law of evidence."

The University refused to produce the documents and sought judicial review of the Commissioner's order.

The Alberta Court of Queen's Bench upheld the Commissioner's decision, concluding that the approach established "a framework that interferes with the confidentiality and privilege only to the extent absolutely necessary." However, the Court of Appeal overturned this decision. It concluded that the language of section 56(3) was not specific enough to demonstrate clear legislative intent to abrogate privilege.

The SCC agreed with the Court of Appeal. Justice S. Côté, for a majority of the SCC, began by reiterating the principle that "legislative language purporting to abrogate [solicitor-client privilege], set it aside or infringe it must be interpreted restrictively and must demonstrate a clear and unambiguous legislative intent to do so." She clarified that this is not a renunciation of the modern approach to statutory interpretation and a return to the strict construction rule, but rather reflects the modern approach in that it recognizes legislative respect for fundamental values. Furthermore, while access to information is certainly important in a modern democratic society, requests for access to information are subject to exceptions and FOIPP does not grant unfettered access to documents. Finally, Justice Côté reiterated the important role of solicitor-client privilege, stating that "[i]t is indisputable that solicitor-client privilege is fundamental to the proper functioning of our legal system and a cornerstone of access to justice" and that "solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary". She concluded that section 56(3) of FOIPP is not "sufficiently clear and precise" to abrogate solicitor-client privilege, which is not only a rule of evidence but a rule of substance.

There were two minority decisions, concurring in the result but dissenting in the reasoning. Justice T.A. Cromwell held that the language and context of section 56(3) demonstrated that the legislature intended to lift solicitor-client privilege to permit the Commissioner to order production when necessary to determine the validity of a claim of privilege. Solicitor-client privilege is a substantive principle but also remains a rule of evidence. Justice Cromwell pointed out that the Commissioner would not be able to fulfill her statutory mandate without the power to review a claim of solicitor-client privilege. However, he agreed that the Commissioner made a reviewable error in ordering production in this case, as the affidavit evidence submitted by the University to support the claim of privilege was sufficient. Justice R.S. Abella disagreed with the majority's finding that the appropriate standard of review was correctness, finding that it ought to be reasonableness. But she agreed that the Commissioner's decision to order production was unreasonable, because the University provided adequate justification for the claim of privilege.


In both Lizotte and Alberta, the SCC reaffirmed the importance of the two main class privileges. Lizotte is notable for more clearly defining litigation privilege as a class privilege that is "central to the justice system", even though it may not attract the same close-to-absolute protection of solicitor-client privilege. Alberta in particular creates a very high bar for statutory language that overrides solicitor-client privilege, even for production to an administrative tribunal that is adjudicating a claim of privilege. This means that that public bodies opposing access to records on the basis of privilege are less likely to have those claims tested. Both decisions will be of particular interest to those working within regulatory regimes with arguably ambiguous statutory language requiring production to the regulator.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions