Canada: Supreme Court Of Canada – Litigation Privilege: An Obstacle To Investigative Powers

The authors wish to thank Daniel-Nicolas El Khoury, Marketing Intern, for his contribution

The Supreme Court of Canada rendered on November 25th, 2016 an awaited judgment, bringing distinctions between the notion of litigation privilege and solicitor-client privilege. In Lizotte v. Aviva Insurance Company of Canada 1, the Court rules that a law must be clear to set aside the privilege. The decision confirms the application of litigation privilege to third party investigators, such as a syndic, despite their duty of confidentiality and their oath of discretion.

After a fire damaged a residence, the Respondent, Aviva, Insurance Company of Canada, assigned one of its claim adjusters to investigate the loss. The syndic of the Chambre de l'assurance de dommages ("ChAD") received information alleging that the claims adjuster failed to carry out his duty adequately, and consequently launched an investigation on the adjuster's conduct in handling the insured's claim. In the course of the investigation, the syndic requested from Aviva a complete copy of its claim file with respect to the insured's loss and identification of the employees who worked on the file pursuant to section 337 of the Act respecting the distribution of financial products and services ("ADFPS"). Aviva complied with the request but removed from its file documents it considered to be privileged under solicitor-client and litigation privileges with its insured.

The syndic of ChAD brought an action for declaratory judgement alleging that she was not in a position to continue her investigation on the claims adjuster's behaviour without the documents withheld by Aviva, for which litigation privilege is claimed. Meanwhile, the litigation between Aviva and its insured was settled out of court, and following such settlement, Aviva provided the syndic with a copy of the complete claim file. Despite the fact that Aviva complied with the syndic's request for production of documents, the issue was disputed up to the Supreme Court because the matter raised a genuine problem.

Both the Superior Court and the Court of Appeal decided in favour of Aviva. The insurer had the right to refuse the production of privileged documents based on professional secrecy and litigation privilege, all the more so when the provision relied upon by the syndic did not include any express exception to the privileges.

Nonetheless, the judgments rendered by both previous Courts showed that some ambiguity regarding the scope of litigation privilege remains. On one side, the Superior Court reiterates notably that litigation privilege is absorbed into the concept of professional secrecy, and as a result, the principles and exceptions regarding the latter concept also applied to litigation privilege. On the other side, the Court of Appeal stated that both privileges are to be differentiated from one another, as established by the Supreme Court in Blank2. Since the scope of litigation privilege was still vague, the syndic brought the matter up to the highest court in the country.

Immunity from disclosure to ensure the secure and effective administration of justice

The Supreme Court stated that Aviva was right to withhold from production documents that were protected under the institution of litigation privilege. In the words of the Court, "[l]itigation privilege gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation."3 While it reiterated the distinction between solicitor-client privilege and litigation privilege stated in Blank, the Court emphasized that both privileges share a common cause, the secure and effective administration of justice according to law.

It is important to note that the Court confirmed that litigation privilege is a class privilege giving rise to a presumption of non-disclosure when the party asserting it establishes that the documents subject to it are those whose dominant purpose is preparation for litigation, whether litigation is pending or may be reasonably apprehended. In this regard, the privilege infers a presumption of immunity from disclosure.

Exceptions to the privileges

In order to the determine whether an exception applied, the Court stated that litigation privilege, as a class privilege, is subject to clearly defined exceptions, and thus rejected the exercise of balancing competing interests associated with case-by-case privileges. The exceptions that are applicable to solicitor-client privilege, such as those relating to public safety, the innocence of the accused and to criminal communications, also apply to litigation privilege. The Court also added the exception pertaining to the "evidence of the claimant party's abuse of process or similar blameworthy conduct"4.

Further, with regard to Aviva's suggestion for the creation of a new exception based on urgency and necessity, the Court considered that this particular matter did not reveal any facts "that might be presented as concrete examples of circumstances that could justify the application of such an exception."5 As a result, although it greets the possibility of additional exceptions to litigation privilege when a serious prejudice occurs during the lifetime of the privilege, the Court decided not to adopt the one proposed by Aviva.

The Court also acknowledged that litigation privilege has a larger scope than that of professional secrecy, because it applies to "communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties."6 Consequently, although it is temporary, litigation privilege is enforceable against third party investigators who have a duty of confidentiality and not only against the parties to the dispute. The Court is of the opinion that the duty of confidentiality, like in the case of a third party investigator, does not sufficiently ensure the respect of litigation privilege.

Clear, explicit and unequivocal language required to lift litigation privilege

Finally, in light of the above and pursuant to the judgment in Parry Sound7 following which common law rules, such as litigation privilege, can only be lifted or modified by a clear provision to that effect, the Court assessed the scope of the powers conferred to the syndic pursuant to section 337 of the ADFPS. In this respect, the Court indicated that requirements and principles set in Blood Tribe8, where it had decided "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 language9" applied to litigation privilege, even if the latter privilege does not have the same status as solicitor-client privilege and is less absolute than the latter.

In this particular case, the terms "any [...] document" found in section 337 of the ADFPS do not meet the criteria of clarity and precision. The Court thus dismissed the syndic's appeal and concluded that Aviva was justified in refusing to produce documents subject to litigation privilege.

Despite the important lessons learned in this judgment, the Supreme Court has not closed the doors to further debates relating to litigation privilege and investigative powers. Indeed, the Barreau du Québec intervened in this matter with the purpose of specifying the scope of section 192 of the Professional Code. This latter section explicitly abrogates professional secrecy in the context of a disciplinary inquiry, but without any reference to litigation privilege. The Barreau du Québec submitted that section 192 should be read as also abrogating litigation privilege. The Court chose not to rule on this issue without full argument in an adversarial context. Thus, the question regarding the applicability of litigation privilege to syndics subject to the Professional Code remains unresolved.


1.  2016 SCC 52.

2. Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319.

3. Lizotte v. Aviva Insurance Company of Canada,  note 1, par. 19.

4. Blank v. Canada (Minister of Justice), note 2, para. 44.

5. Lizotte v. Aviva Insurance Company of Canada, note 1, para. 45.

6. Blank v. Canada (Minister of Justice), note 2, para. 27.

7. Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157.

8. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574.

9. Lizotte v. Aviva Insurance Company of Canada, note 1, para. 1.

Supreme Court Of Canada – Litigation Privilege: An Obstacle To Investigative Powers

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.

In association with
Related Topics
Related Articles
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