Civil procedure

Privilege

Solicitor client privilege - Anytime where client seeks legal advice from lawyer, those exchanges will be found to be privileged, confidential and non-disclosable; except by waiver of privilege

• 
  Solicitor-Client privilege is an all encompassing ideal that allows for the confidential relationship necessary to effectively administrate justice.
  

Litigation privilege is directed at ensuring the efficacy of the adversarial process, not the solicitor client relationship. Litigation privilege is not “absolute in scope nor permanent in duration”
LITIGATION PRIVILEGE TEST

2 steps for litigation privilege (Smith v Air Canada)

1. 
   Was the document at issue prepared at the prospect and reasonable contemplation of future litigation?
   

 But prospect of litigation alone is not sufficient to meet the claim of privilege (Smith v Air Canada)

2. 
   If yes, was the future litigation the dominant purpose of that particular document?
   

If YES to both, the dominant purpose of creating the document was to prepare for litigation and is privileged.

• 
  This protects any document that was prepared for the purpose of litigation that was reasonably contemplated
  

Other Categories of Privilege (i.e. - Confidentiality Test) – A.M v Ryan (Wigmore test)

1. 
   Communications must originate in a confidence that they will not be disclosed
   
2. 
   Confidentiality must be essential to full maintenance of relationship between parties
   
3. 
   The confidentiality relationship should be fostered by the community
   
4. 
   The injury that would occur to the relationship must be greater than what is needed for the correct disposal of litigation
   
5. 
   **NEW STEP FROM RYAN: For privilege to exist, it must be shown that the benefit that comes from the privilege does in fact outweigh the interest in the correct disposal of the litigatio
   

A.M v Ryan

[Confidentiality test, new step]

FACTS

*subject matter not too important

AM sexually assaulted by R and was receiving help from psychiatrist. R said that she consented and did not cause damages such as emotional trauma, etc. AM asked her psychiatrist to keep the notes confidential, so Dr. P agreed to produce her reports but not notes from their conversations, but was ordered to produce notes, they’re not privileged

• 
  Trial – notes were privileged, however, public interest in admin of justice outweighed confidentiality oncerns
  
• 
  CoA – AM didn't claim privilege, and could only be claimed if it hurt doctor. Court ordered disclosure of notes under the condition that it’ll only be given to docs, and expert witnesses and only used in litigation
  

ISSUE

Are the psychiatrists notes prevented from being disclosed in the suit?

What criteria determines whether a confidential relationship exists?
RATIO

**In this case, it refers to the privilege between a psychiatrist and a client

Wigmore test to ground a communication in confidentiality

1. 
   Communications must originate in a confidence that they will not be disclosed
   
2. 
   Confidentiality must be essential to full maintenance of relationship between parties
   
3. 
   The relationship should be fostered for the public good
   
4. 
   IF these are all met, Court must see whether the injury that would occur to the relationship is greater than what is needed for the correct disposal of litigation
   
5. 
   NEW STEP: For privilege to exist, it must be shown that the benefit that comes from the privilege does in fact outweigh the interest in the correct disposal of the litigation
   

The common law must develop the values of the Charter. Privacy as a right should be fostered and in certain circumstances, there may be relationships where confidentiality is so crucial that to deny it would violate charter values and breach the wigmore test
ANALYSIS

• 
  Victims of sexual violence may be doubly victimized by the act and by the need for redress. The court found that the stringent conditions placed on the dissemination of the notes by the court of appeal helped to serve the purpose of both honouring the privacy of A.M as well as allowing the courts to execute their truth finding function.
  

• 
  The facts clearly show that the first three prongs of the test are met, but the 4^th step in balancing the need for privacy and justice is where the court can show guidance in fashioning appropriate responses to individual cases.
  
• 
  Here the notes would basically be shared as they would in a hospital, in confidence and with a low chance of having her rights violated. This prevents her re-victimization but meets the needs of the defendant as well.
  

HOLDING

Limited disclosure allowed, appeal dismissed.

R v Campbell

[solicitor-client privilege; waiver to privilege]

FACTS

Cops were going to do a reverse string operation to catch a bad guy. Question arose about the legality of the RCMP’s conduct. RCMP argue that they acted in accordance with legal advice they received from the Department of Justice, and they wanted to avail themselves from good faith.

ISSUE

Are there solicitor-client privilege between the police and department of justice?

If so, is it waived b/c of the good faith doctrine (they acted in accordance to the advice they got – the reverse sting which was criminal), in which they relied upon?
RULE

Solicitor-Client Privilege

Anytime where client seeks legal advice from lawyer, those exchanges will be found to be privileged, confidential and non-disclosable; except by waiver of privilege
When is privilege waived?

When those communications are criminal or else made with a view of obtaining legal advice to facilitate a crime; but there must be something to suggest the advice facilitated the crime.

• 
  Also if adhering to the rule has the effect of preventing acc’d to make full answer and defence.
  

ANALYSIS

Here, the RCMP took the advice and participation of the Department of Justice and on good faith relied on what they said when they participated in the reverse string (which was criminal). Which means, for this case, the solicitor-client privilege is waived. And there should be a disclosure of documents here on the nature of the legal advice, and any additional disclosure should be made to appellants.

Smith v Air Canada

[Production of documents where privilege is claimed; Litigation Privilege]

FACTS

S is suing Air Canada after bag fell on her from overhead bin. Air Can is claiming that the incident report is privileged, and that they already provided affidavits. S is saying that there should be increased disclosure.

RULE

TEST/PRINCIPLES in respect to production of documents on which privilege is claimed: (Beer v Nickerson)

1. The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2. The test for considering whether litigation privilege is established is two-fold:

(a)  Was litigation a reasonable prospect at the time the document in dispute was created?

(b)  If so, was the dominant purpose of the document’s creation for use in litigation? (commonly known as the “dominant purpose” test.)

3. Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4. However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege.

As stated by the court in Hamalainen v. Sippola:

Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

5. It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.