Privilege in Civil Cases Revisited
| Author | Sheila Block and Lynn Iding |
| Pages | 219-250 |
Privilege
in
Civil Cases
Revisited
Sheila
Block
and
Lynn
Iding*
A.
INTRODUCTION
Almost
twenty years
ago,
these lectures featured
two
excellent papers
on
privilege
in
civil
cases,
the
first,
on
solicitor-client privilege,
by
J.L.
McDougall,
Q.C.,
and
Fred Meyers,
and the
second
by
R.J.
Sharpe
(before
his
appointment
to the
Bench)
on
litigation
privilege.1
The
priv-
ilege landscape
in
1984
can be
summarized under
six
points:
1.
Canada
v.
Solosky1
had
held that privilege
was
recognized
not
only
as
a
rule
of
evidence
but
also
as a
substantive rule that permitted
the
Court
to
construe very narrowly
any
power
to
require
disclosure
of
communications
properly subject
to
privilege when disclosure
was
made
for
purposes other than
the
gathering
of
evidence.3
*
Of
Torys
LLP,
New
York,
Toronto.
1
J.L.
McDougall,
"Privilege
in
Civil Cases" 1984
LSUC
Special Lectures (Toron-
to:
Butterworths,
1984)
at
131; R.J.
Sharpe,
"Claiming Privilege
in the
Discov-
ery
Process"
in
ibid,
at
163.
2
[Solosky].
3 In
Solosky
the
case involved
prison
authorities opening
prisoners'
mail,
includ-
ing
correspondence between
a
prisoner
and his
solicitor.
See
also
Descoteaux
v.
Mierzwinski
(1982),
141
D.L.R.
(3d)
590
(S.C.C.)
[Descoteaux},
which held
at 609
that
privilege
was
more than
a
rule
of
evidence;
it was a
right
"as
fundamental
as
the
right
to
counsel itself."
219
220
SHEILA BLOCK
AND
LYNN
IDING
2.
Wigmore's
four
fundamental conditions
for
privilege were well
entrenched. Those conditions
are as
follows:
(1)
The
communications must originate
in a
confidence that they
will
not be
disclosed.
(2)
This element
of
confidentiality must
be
essential
to the
full
and
satisfactory
maintenance
of the
relation between
the
parties.
(3)
The
relation must
be one
that
in the
opinion
of the
community
ought
to be
sedulously fostered.
(4)
The
injury
that would inure
to the
relation
by the
disclosing
of
the
communications must
be
greater than
the
benefit
thereby
gained
for the
correct disposal
of
litigation.4
3. It was
clear that there were
two
types
of
privilege: solicitor-client
privilege,
protecting consultations
for the
purpose
of
obtaining
advice,
and
litigation privilege, protecting
counsel's
brief.
The
limi-
tations
on
litigation privilege were
not yet
settled
and the
position
of
agents, experts,
and
third parties communicating with counsel also
needed
clarification.5
4.
It was
clear that neither branch
of
privilege permitted
a
party
to
withhold
facts.
A
party
had to
answer
questions
and
produce docu-
ments related
to
questions
of
objective
fact
or
actions.
It was
still
not
clear
how to
separate acts
from
communications.6
5.
Company employees
or
officers
communicating with in-house coun-
sel
enjoyed solicitor-client privilege. Distinguishing corporate coun-
sel's
legal
from
business
functions would prove
the
challenge
in the
following
decades.7
6.
Privilege could
be
waived
by a
party directly putting legal advice
at
issue.
The
extent
to
which implied waiver could arise when
a
party
pleaded
its
state
of
mind
was not yet
clear.
4
J.H.
Wigmore,
Evidence
in
Trials
at
Common
Law,
3d
ed., rev. J.T. McNaughton
(Boston: Little, Brown, 1961) vol.
8,
para. 2285, although written
with
solicitor-
client privilege,
not
litigation privilege,
in
mind.
5
Wheeler
v.
Le
Marchant
(1881),
17 Ch. D. 675 at
681.
In
1984,
the
dominant
pur-
pose test
was
still
not
established
in
Ontario.
See
Delta
Benco
Cascade
Ltd.
v.
Lakes
Cablevision
Inc. (1982),
35
O.K.
(2d)
715
(S.C.);
Ilich
v.
Hartford
Fire
Ins.
Co.
(1980),
17
C.P.C.
163
(S.C.),
aff'd
20
C.P.C.
8
(H.C.J.).
See
also
the
vigorous
debate
on the
point between Watson
Au and
Wilson
all
cited
and
rationalized
in R.
Manes,
"More
on
Solicitor/Client Privilege:
The Tug of War
Continues"
(1999)
78
Can. Bar. Rev. 534.
6
Ontario
(Securities
Commission)
v.
Greymac
Credit
Corp.
(1983),
41
O.R. (2d)
328
(Div.
Ct.)
[Greymac].
7
Alfred
Crompton
Amusement
Machines
Ltd.
v.
Commissioners
of
Customs
and
Excise
(No.
2),
(C.A.),
aff'd
(H.L.).
Privilege
in
Civil
Cases
Revisited
221
This paper will examine some
of the
significant developments since
privilege
was
last addressed
in
these lectures.
B.
APPLYING
WIGMORE
CRITERIA
OUTSIDE
OF
SOLICITOR-CLIENT
RELATIONSHIPS
In
Slavutych
v.
Baker?
the
Supreme Court applied Wigmore's
four
crite-
ria for
confidentiality
to a
communication made outside
a
solicitor-
client relationship.
The
plaintiff,
Professor
Slavutych/
was
asked
by his
university
to
fill
out a
confidential evaluation
form
assessing another
colleague's
suitability
for
promotion
to
tenured
professor.
The
plaintiff,
in
filling
out
this
evaluation, made rather scandalous accusations
against
his
colleague.
The
evaluation
form
was
used
by the
university
to
justify
the
termination
of the
plaintiff's
own
employment. Litigation
ensued
and the
plaintiff
argued that
the
evaluation
form
ought
not to be
entered into evidence because
of its
confidential nature.
The
Court
agreed, viewing
the
form
in the
context
of
Wigmore's confidentiality cri-
teria.
The
evaluation form satisfied
the
four conditions, largely
on the
basis
that
the
parties
had
"solemnly
agreed" that
the
documents would
be
kept
confidential.9
After
Slavutych,
but
largely without
reference
to it,
claims
of
privilege
were
often
decided
on the
basis
of the
Wigmore criteria, with varying
success.
But it was
actually
the
case
of R. v.
Gruenkew
that cemented
the
idea that
a
case-by-case analysis
of
privilege should
be
undertaken, using
the
Wigmore test,
when
it is
argued that privilege should
be
accorded
to
relationships other than solicitor-client relationships.
It is
Gruenke,
rather
than
Slavutych,
that
has
been followed
and
mentioned frequently
in
priv-
ilege cases. This case-by-case approach
has
been used
to
attempt
to
argue
for
new
"classes"
of
privilege, largely
unsuccessfully,
and for
what Jus-
tice
L'Heureux-Dube
in M.
(A.)
v.
Ryann
termed "partial privilege,"
which
does
not
create
a new
privilege class,
but
which
may
affirm
privi-
lege over specific communications
in
specific cases.
Slavutych
appears
to
have been
a
short-lived high water mark.
In
Gruenke,
the
Court refused
to
grant
a new
class
of
privilege
to
religious
communications
and
declined
to
grant privilege over
the
specific
com-
8
(1975),
55
D.L.R.
(3d)
224
(S.C.C.)
[Slavutych}.
9
Ibid,
at
230.
10
[Gruenke}.
11
(1997),
143
D.L.R. (4th)
1
(S.C.C.)
[Ryan}.
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