Canada: It Has Been A Privilege...And Still Is In England, As Well As Canada

Last Updated: October 9 2018
Article by Reglementation Des Valeurs Mobilieres, David M. Porter, Andrew Matheson and Alison Bond

Most Read Contributor in Canada, September 2018

On September 5 2018 the Court of Appeal of England and Wales handed down its highly awaited judgment in Serious Fraud Office v Eurasian Natural Resources Corporation [2018] EWCA Civ 2006. The Court of Appeal was asked to consider whether the High Court had erred in finding that certain documents were not protected by litigation privilege because they had been created too early during an internal investigation for litigation to reasonably be in contemplation. The court below found that documents, including lawyers' notes of witness interviews, had been created for the purpose of avoiding, rather than defending, criminal prosecution. This distinction and the decision as a whole were controversial, as their effect was to significantly narrow the circumstances in which litigation privilege could apply to records prepared as part of an internal investigation.

In a critically important reversal, the Court of Appeal found that, although the Serious Fraud Office had not commenced a formal investigation against Eurasian Natural Resources Corporation Limited ("ENRC"), criminal proceedings were possible and, therefore, documents brought into existence for the dominant purpose of resisting or avoiding criminal proceedings against ENRC were covered by litigation privilege.

Lawyers and companies in England and Wales are breathing a sigh of relief that the wider scope of litigation privilege has been restored. However, the Court of Appeal's judgment makes clear that the factual matrix surrounding the creation of documents by ENRC and its counsel was key in determining the extent of litigation privilege.

Canadian courts have taken a similarly contextual approach in making determinations as to whether or not documents associated with an internal investigation are protected from disclosure as a result of litigation privilege. There is no formula to guarantee that broad litigation privilege claims will prevail.

For example, in Alberta v Suncor Energy Inc, 2017 ABCA 221, the Alberta Court of Appeal found that a chambers judge was incorrect in finding that because the dominant purpose of an internal investigation was in contemplation of litigation, every document created or collected during that investigation was protected by legal privilege. The Alberta Court of Appeal rejected a "blanket" approach to privilege determinations and required an analysis of specific categories of documents, having regard to the precise circumstances of their creation. The fact that an investigation had been commenced was found insufficient to claim that all materials produced as part of that investigation were protected by solicitor-client privilege or litigation privilege. The Alberta Court of Appeal remitted the privilege claims back to be assessed with greater particularity, through a "referee", appointed under Alberta's rules, to review the privilege claims made for specific documents or categories of documents, and make a recommendation on the specific privilege claims to the judge.

While Canadian courts have not established rigid criteria for the application of litigation privilege in the context of internal investigations, there are several factors that weigh heavily in the adjudication of such privilege claims. It pays to consider these factors carefully at the outset of, and throughout, an internal investigation. Usually, maximizing privilege protection around an internal investigation is a high priority because it provides greater control over the nature, scope and timing of disclosure choices, which is desirable even if the likely eventual strategy will be cooperation with authorities.

Among the privilege factors that should be considered at the front end of an internal investigation, and revisited throughout, are:

  • Greater counsel involvement lends support to privilege claims. Albeit principally relating to claims of solicitor-client privilege, rather than litigation privilege, Canadian Imperial Bank of Commerce v. Her Majesty the Queen 2015 TCC 280 presents an example of how lack of counsel involvement at key stages can undermine privilege claims in connection with internal investigations.
  • Clearly define the purpose and scope of the investigation: Creating a "counsel instruction memo" or "investigation charter" is an effective way to lay the foundation for privilege claims. A "counsel instruction memo" or "investigation charter" should set out the purpose, scope, objectives, methods and strategies of the investigation as well as the individuals and other stakeholders involved. Such documentation can be pivotal when privilege claims are contested, as R v. Husky Energy, 2007 SKQB 383 illustrates. In that case, the Court relied on an "investigation charter" as evidence that the investigation was for the dominant purpose of addressing potential litigation, notwithstanding that the company's obligation to report an incident to regulators would have inevitably required some investigation and evidence gathering.
  • Consider carefully the manner of recording interviews: The manner of the recording in question - who created the record and how – often carries significant weight in the determination of privilege claims. In R v Assessment Direct Inc, 2017 ONSC 5686, the court held that audio recordings of telephone conversations of an employee of the accused company speaking with potential witnesses (which were seized by police pursuant to a search warrant) were not protected by litigation privilege because they simply recorded facts. Justice Nordheimer held " is the revelation of the party's litigation strategy that is protected, not base information itself" and as the recordings would not reveal counsel's observations, thoughts or opinions, they were not privileged. By contrast, in R v. Dunn, 2012 ONSC 2748, notes taken by a lawyer of an interview of his client during an internal investigation were considered protected by litigation privilege. This reflects the courts' willingness to protect records that would reveal impressions or views of counsel.
  • Guard legal advice diligently: Communications between counsel and the client in support of legal advice enjoy the greatest protection under the law. Nevertheless, the quasi-constitutional status of solicitor-client privilege can be lost through lack of confidentiality or waiver, including implied waiver. Work product of counsel that summarizes the result of an investigation, legal risks and strategies should only be accessible by the appropriate instructing agents of the organization (non-conflicted senior officers, the Board, the Audit Committee, the Special Committee, etc., as the case may be, depending on circumstances). In addition, it is important to be alert to the challenge that not all communications between counsel and client are necessarily protected by solicitor-client privilege. Communications which are factual in nature and not in support of legal advice will be more difficult to protect. This can be particularly difficult for in-house lawyers who often take on multiple roles within their organizations, not all of which involve the provision of legal advice.
  • Manage communications with law enforcement: In ENRC, there were extensive communications between the company's external counsel and law enforcement, resulting in confusion and unmet expectations on the part of law enforcement. This aggravated the danger of loss of privilege (which materialized at first instance but was reversed on appeal). Cooperation is usually an 'all in decision': if a commitment to cooperate is made, law enforcement will expect to receive all of the fruits of the investigation, and will be obliged to disclose all such material to any other accused who face the same allegations, as R v. Nestle, 2015 ONSC 810, illustrates. If it becomes necessary to share with law enforcement only a narrow set of information that is arguably privileged, try to negotiate a non-waiver agreement, which aims to protect against broader subject matter waiver.

To view original article, please click here.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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