Privilege

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

193

CHA PTER 8

PR I VI LEGE

A. InTRoduCTIon

The preceding chapter discussed t he trend to require ever greater pre-

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

discusse s the circumstances i n which important societal and proced-

ural interests over ride this f undamental 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 priv ilege affect the obligation to make pre-tri al dis-

closure. These i nclude the priv ilege 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 thi s chapter.

Although there a re many different forms of privi lege, each hav ing

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

of t he 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 activ ity t hat

society regards as suff‌iciently important to override the interests in