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The state of litigation privilege after Blank

Litigation and Arbitration
|Written By Jean-Francois Gagnon
The state of litigation privilege after Blank

Ten years ago, the Supreme Court of Canada rendered its decision in Blank v. Canada, thereby putting an end to considerable debate among Canadian jurists regarding the scope of the litigation privilege. In that decision, the Court underlined the distinct nature of this common law privilege, which had often been wrongly confused with solicitor-client privilege.

The Blank decision first established that the litigation privilege differs from solicitor-client privilege in having a much broader scope. It covers not only communications between lawyer and client but also communications between a lawyer and third parties or, in the case of an unrepresented litigant, between the litigant and third parties.

Its purpose is to ensure the efficacy of the adversarial process by creating a “zone of privacy” allowing the parties to prepare their arguments in private, without adversarial interference or fear of premature disclosure. The purpose of the solicitor-client privilege, on the other hand, is to preserve the confidential relationship between lawyer and client.

The specificity of the litigation privilege is also due to its duration. For while the principle of “once privileged, always privileged” applies to the solicitor-client privilege, the litigation privilege is inextricably linked to the dispute between the parties, and thus ends when that dispute comes to an end.

It is in fact this last difference that underlies the preponderant condition that gives rise to the privilege. In order for a document or communication to be protected, it must have been prepared or made exclusively, or at least primarily, for the purpose of litigation. Litigation must, therefore, be the dominant purpose for which it was made or prepared.

The Supreme Court points out, however, that the privilege may arise even before a dispute has arisen. Thus, communications or documents may be protected if they are prepared primarily for litigation purposes, whether the litigation is pending or apprehended: It suffices that litigation be foreseeable. Applying this principle, the Quebec Court of Appeal decided in 2012 that the fact that a document was prepared before the occurrence of the events giving rise to the litigation was not determinative.

Quebec courts nevertheless recognize that there are certain limits to the privilege. First of all, just like the solicitor-client privilege, it can be waived. Such a waiver must, however, be voluntary, clear, and evident. Simply referring to a privileged document while testifying is not sufficient to establish that the privilege has been waived. However, a party that expressly relies on a protected document to prove that it is in good faith or to justify a decision it has made thereby waives the privilege.

Similarly, the Quebec Superior Court has held that documents prepared by an employee in the normal course of his or her duties cannot be considered privileged, as such circumstances do not meet the dominant purpose criterion. Justice Claude Bouchard points out in his judgment that an employee given the responsibility for preparing such documents would have done so whether proceedings had been instituted or not.

This interpretation of the dominant purpose criterion was recently confirmed by the Quebec Court of Appeal in a case where exchanges between employees of an insurance company before the litigation arose were considered not covered by the privilege. The court held that as the exchanges occurred in the normal course of the insurance company’s business, they did not have the required purpose to be considered as communications made primarily for the purposes of litigation.  

In short, Quebec courts tend to limit the scope of the privilege, to the extent that it constitutes “[translation] an obstacle to freedom to adduce evidence by all means and to the truth-seeking process.” It should be pointed out that an appeal of the decision in Lizotte v. Aviva, compagnie d’assurances du Canada is currently pending before the Supreme Court of Canada.

For the first time since Blank, the Court will be reconsidering the principles underlying the scope of the litigation privilege, and whether or not it can be set up against the syndic of a professional order.

Jean-François Gagnon is managing partner at Langlois LLP. Léonie Derome is an articling student at the firm.


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