AuthorJanet Walker/Lorne Sossin
ProfessionOsgoode Hall Law School, York University/Faculty of Law, University of Toronto
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

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