Supreme Court Rules that Litigation Privilege Cannot be Overridden Without a Statute’s Express Language

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The Supreme Court ruled that litigation privilege is protected by the same rules of statutory interpretation as solicitor client privilege. Namely, a statute must be clear and unambiguous about its overriding of litigation privilege to have this effect.

Litigation privilege is distinct from solicitor client privilege

“Litigation privilege,” like “solicitor-client privilege,” protects private information from being released to third parties. Unlike solicitor-client privilege, the purpose of litigation privilege is “to ensure the efficacy of the adversarial process.”[1] Moreover, litigation privilege is a temporary protection of information (ending when the litigation ends) and applies to non-confidential documents.[2] In short, it ensures the proper functioning of the judicial system, while solicitor client privilege protects the standard relationship between lawyer and client.[3]

Legislation concerning the protection of information can abrogate solicitor-client privilege, but it must do so clearly and explicitly

Legislation such as FIPPA[4] in Ontario and PIPEDA,[5] federally, protect certain forms of information while allowing the free flow of other sorts of information. For such legislation to override solicitor-client privilege, it must be clear and unambiguous that this is its intent.[6] For instance, a provision that allowed for the collection of “all” information could not have effect in regards to information protected by solicitor-client privilege, unless it explicitly included that such information would also be subject to collection.

The Supreme Court found that the same interpretive rules that apply to solicitor-client privilege apply to litigation privilege

In Lizotte v Aviva Insurance,[7] the Supreme Court had to clarify the circumstances in which documents subject to “litigation privilege” could be ascertained under legislation. It determined that the same rules of statutory interpretation regarding solicitor-client privilege apply to litigation privilege.

In this case, Lizotte (the assistant syndic of the Chambre de l’assurance de dommages) requested information on one of Aviva’s insured members. The authority for this request was grounded in the ADFPS,[8] granting access to “any…document”[9] concerning investigations of professional conduct. The Court found that litigation privilege is a “fundamental principle of the administration of justice that is central to the justice system,”[10] and therefore, it’s abrogation requires clear and explicit statutory language. Such language was absent in the present case, and the appeal was thus dismissed.

There are a class of exceptions to litigation privilege, meaning that the Court will not “balance” competing interests in future cases

There are a class of exceptions to litigation privilege’s application. That is, rather than balancing competing interests regarding whether the legislation should apply in any given instance, courts will look to existing categories to determine when there will be exceptions to its application. In other words, there is a presumption that litigation privilege protects against the disclosure of information. The person or group seeking to protect information need only establish that litigation privilege protects the information. Once this is done, the person seeking information must establish that it falls within an exception, including those relating to public safety, the innocence of the accused, criminal communications, and “blameworthy conduct” such as a claimant’s abuse of process.[11]

 

Notes:

[1] Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 at para 22.

[2] Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 at para 22.

[3] For more information on the overlapping definitions of “solicitor client privilege” and “litigation privilege,” see Blank v Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319.

[4] Freedom of Information and Protection of Privacy Act, RSO 1990, c F 31.

[5] Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

[6] Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR 574.

[7] Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52.

[8] Act respecting the distribution of financial products and services, 2009 c 25 D-9.2.

[9] Act respecting the distribution of financial products and services, 2009 c 25 D-9.2, s 337.

[10] Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 at para 4.

[11] Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52 at para 41.

 

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.