Privilege

• Author: Janet Walker/Lorne Sossin
• Profession: Osgoode Hall Law School, York University/Faculty of Law, University of Toronto
• Pages: 193-204

193

CHAPTER 8

PR I VI LEGE

A. InTRoduCTIon

The preceding chapter discussed the trend to require ever greater pre-

trial disclosure as a way of preventing surprise at trial. This chapter

discusses the circumstances in which important societal and proced-

ural interests override this fundamental concern. Under these circum-

stances, information and materials that are relevant to the issues at

hand and that could affect the outcome of the case are considered “priv-

ileged” and, therefore, exempt from the obligation to disclose them.

Some forms of privilege affect the obligation to make pre-trial dis-

closure. These include the privilege that protects communications be-

tween a solicitor and his or her client — solicitor-client privilege — and

the privilege that protects communications made in preparation for liti-

gation — litigation privilege. Solicitor-client privilege and litigation priv-

ilege will be discussed in the next two sections of this chapter. Other

forms of privilege affect the evidence that can be admitted at trial. One

such privilege — that protecting settlement negotiations from disclo-

sure at trial — will also be discussed in this chapter.

Although there are many different forms of privilege, each having

its own scope and operative rules, they may all be understood in terms

of the underlying rationale: the relationship or activity in which the

communication was made, and which might suffer if the communica-

tion is not protected from disclosure, is a relationship or activity that

society regards as suff‌iciently important to override the interests in