# Privilege — Quick Reference Expanded reference for the privilege doctrines that come up most in Canadian civil practice. --- ## Solicitor-Client Privilege **What it protects:** Communications between a lawyer and a client, for the purpose of legal advice, made in confidence. **Duration:** Permanent. Survives death of the client (in most cases). **Who holds:** The client. **Waiver:** Only the client can waive. Disclosure to third parties generally waives, but joint retainer, common interest, and inadvertent disclosure principles apply. **Exceptions:** - Innocence at stake (very narrow — see *McClure*) - Imminent threat to public safety - Statutory abrogation (rare and construed strictly) - Crime-fraud exception (communications in furtherance of crime or fraud are not privileged) **In practice:** - Emails between lawyer and client → privileged - Notes of legal advice → privileged - The fact that legal advice was sought → generally privileged in Canada (unlike some US jurisdictions) - The identity of the client → sometimes privileged, sometimes not **Key cases:** *Descôteaux* 1982 SCC; *Solosky* 1980 SCC; *McClure* 2001 SCC; *Blood Tribe* 2008 SCC; *Chambre des notaires* 2016 SCC. --- ## Litigation Privilege **What it protects:** Documents and communications created for the dominant purpose of pending or contemplated litigation. **Duration:** Ends when the litigation ends (*Blank v Canada* 2006 SCC). **Who holds:** The party. Both party and lawyer can claim. **Waiver:** Voluntary disclosure. Related-litigation exception can extend protection in some circumstances. **Distinguished from solicitor-client:** - Solicitor-client: needs lawyer, no litigation required - Litigation: no lawyer required, needs litigation as dominant purpose **In practice:** - Witness statements taken for litigation → privileged - Expert reports prepared for litigation → generally privileged until expert is called - Investigator reports for litigation → privileged - Internal memos about strategy → privileged **Key cases:** *Blank v Canada (Minister of Justice)* 2006 SCC; *Lizotte v Aviva* 2016 SCC. --- ## Settlement Privilege ("Without Prejudice") **What it protects:** Communications made in a genuine attempt to settle a dispute. **Duration:** Depends. In some cases permanent; in others may terminate with the specific negotiation. **Who holds:** Joint privilege of the negotiating parties. Both must waive. **Purpose:** To encourage frank settlement discussions without fear of disclosure. **Exceptions:** - Proving that a settlement was reached - Misconduct in the negotiations - Unconscionability - Statutory disclosure obligations **In practice:** - Formal offers marked "without prejudice" → privileged - Informal settlement discussions → privileged if purpose is clear - Communications after settlement → not privileged unless directly concerning the settlement **Formula 1 rule / Calderbank offers:** Offers made "without prejudice except as to costs" — protected from disclosure on the merits but available on costs after judgment. **Key case:** *Sable Offshore Energy* 2013 SCC. --- ## Spousal Privilege **Current status:** Substantially modified by statute. The historical common-law privilege has been narrowed. **Federal:** Canada Evidence Act ss.3-4 and related provisions. **BC:** BC Evidence Act contains relevant provisions. **In practice:** - Recent legislative changes have limited spousal incompetence in criminal proceedings - Consult current statute text — this area has changed - Same-sex spouses receive same treatment **Note:** This is an area where the law has moved significantly. Verify current provisions before relying on any specific rule. --- ## Case-by-Case ("Wigmore") Privilege For confidential relationships not covered by class privileges. Four criteria (from *Slavutych v Baker* 1976 SCC): 1. Communication originated in confidence 2. Confidentiality is essential to the relationship 3. The relationship is one society should sedulously foster 4. Injury to the relationship from disclosure would outweigh the benefit of correct disposal **Applied to:** - Journalist-source (*R v National Post* 2010 SCC — narrow test) - Sexual assault counsellor records (statutory scheme in criminal) - Some priest-penitent situations - Peer-review discussions in some contexts **Not applied to:** - Doctor-patient (as a class — but specific communications may qualify) - Accountant-client (generally not privileged in Canada) --- ## Informer Privilege **Nearly absolute.** Protects the identity of persons who provide information to police in confidence. **One exception:** Innocence at stake in a criminal proceeding. **Not waivable** by the informer alone — protects a public interest. **Key case:** *Named Person v Vancouver Sun* 2007 SCC. --- ## Public Interest Immunity The Crown may claim protection where disclosure would harm the public interest. **Federal:** Canada Evidence Act ss.37-39 (national security, intergovernmental relations, cabinet confidence). **Provincial:** Common-law and statutory provisions. **Procedure:** Court weighs disclosure against harm, sometimes examining the documents in camera. --- ## Aboriginal Communications Communications with Elders or in Indigenous cultural contexts may attract privilege under Wigmore or specific evolving doctrines. Increasingly recognized area, particularly in matters affecting Indigenous rights. --- ## Litigation Practice Tips ### Claiming Privilege - Assert clearly and specifically - If withholding documents, provide a privilege log describing the documents in enough detail for opposing counsel to assess the claim - Do not include the content — that would waive privilege - Log entry typically includes: date, author, recipient, general subject, privilege claimed ### Challenging Privilege Claims - Request particulars if the privilege log is inadequate - If the claim is questionable, apply for the court to review the documents in camera - Consider whether waiver has occurred - Consider whether the underlying communication was ever privileged ### Waiver Traps Waiver can occur through: - Voluntary disclosure to a non-privileged third party - Using the privileged communication as a sword (e.g. relying on legal advice as a defence) - Selective disclosure — cannot cherry-pick favorable parts - Inadvertent disclosure (though relief may be available if prompt action taken) ### Common Interest Privilege Parties with a common interest (e.g. co-defendants) may share privileged communications without waiving privilege as against third parties. Doctrine is more restricted in Canada than in some US jurisdictions. --- ## Privilege in Administrative Proceedings Privilege claims apply in administrative proceedings, though the mechanisms may differ from court. At the RTB and similar tribunals: - Solicitor-client privilege applies with full force - Settlement privilege applies - Public interest immunity may be raised by government participants - The tribunal generally cannot compel privileged disclosures Even in the more relaxed evidentiary environment of tribunals, privilege retains its full protection.