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What is Litigation Privilege in British Columbia?


What do you have to disclose in the context of court proceedings? Proper disclosure is important to the adversarial trial process. It can narrow the issues, encourage settlement, and decrease the time and expense of litigation.

But certain documents and communications contain sensitive information that you may want to keep private. Several different types of privilege may apply to protect those types of documents and communications. If it is privileged, it does not have to be disclosed to the other side in a lawsuit.

In today’s blog post, we will have a look at the legal concept of “litigation privilege,” including why it’s important, and how it differs from “solicitor client” privilege. This information will help you if you are involved in a lawsuit, whether it’s estate litigation or a family law case.

Understanding Disclosure Requirements in BC Litigation

Understanding disclosure requirements in BC litigation

Full Disclosure is Very Important

Disclosure is essential to the litigation process. It is necessary to help the parties prepare their cases and evaluate their positions. Full disclosure of relevant materials ensures that the playing field is level and that neither party is unfairly taken by surprise at trial.

The types of documents and communications that must be disclosed will depend on the nature of your legal dispute. Common examples include medical records, expert reports, bank records, income tax returns, employment records, letters, emails, faxes, texts, adjusters files, and business records.

Rules to be Followed

Because disclosure is so important to the adversarial process, there are detailed court determined rules that govern what is required. The BC Supreme Court Civil Rules contain requirements for the discovery and inspection of documents in civil cases such as trust and estate litigation. The BC Supreme Court Family Rules contain explicit requirements for financial disclosure in family litigation to ensure full disclosure of relevant material. Both sets of rules have been interpreted and applied by British Columbia courts in cases where privilege is challenged or where there are allegations that documents are being improperly withheld.

Non-Disclosure is Taken Seriously by the Court

A party to litigation who ignores disclosure requirements or refuses to disclose documents that should be disclosed can be ordered to do so and penalized by the court (e.g., ordered to pay costs to the other party). Misconduct of that sort can seriously damage the outcome of the case. “Non-disclosure” is a significant problem; it has been described as “the cancer of matrimonial property litigation” and is equally frowned upon in estate litigation cases.

Disclosure Requirements Must be Balanced Against the Privilege

Disclosure requirements must be balanced against the privilege

While proper disclosure is extremely important, it must be balanced against the legal concept of privilege. Parties to litigation are not required to produce privileged documents or communications, even though they are otherwise relevant to the issues at stake in the lawsuit. Several different categories of privilege can apply to protect records and communications. The category of privilege that we will have a look at today is “litigation privilege” and how it differs from “solicitor client privilege.”

What is Litigation Privilege BC?

Litigation privilege is a limited exception to the principle of full disclosure. It protects against the compulsory disclosure of communications and documents created for the dominant purpose of existing or contemplated litigation, as well as any communications between a lawyer, their client, and/or a third party that was created for the dominant purpose of preparing for litigation, whether the litigation is anticipated or already underway.

The purpose of litigation privilege is to create a “zone of privacy” with respect to pending or apprehended litigation. In preparing for trial, lawyers often obtain information from clients or third parties who have no need nor any expectation of confidentiality, yet litigation privilege may attach to protect it from disclosure nonetheless.

As such, any report, letter of advice, or other document prepared by an expert, a consultant, by a party, or by the employees, agents, or professional advisors of a party in contemplation of litigation are privileged. While their existence must be disclosed, they need not normally be produced unless the privilege has been lost or waived.

How to Claim Litigation Privilege

How to claim litigation privilege

The obligation rests with the party objecting to the production of a document on the grounds of litigation privilege to satisfy the court that the document was created for the dominant purpose of submitting them to a party’s lawyer or counsel for advice and use in litigation or contemplated litigation.

Litigation privilege must be established by the party claiming it on a document-by-document basis. The two-fold test for litigation privilege has been summarized by Master Bouck of the British Columbia Supreme Court as follows:

The party claiming privilege must satisfy the court with respect to this two part test in relation to each document over which privilege is claimed:

1.  that litigation was ongoing or was reasonably contemplated at the time the document was created; and

2.  that the dominant purpose of creating the document was to prepare for that litigation.

Litigation does not need to be the sole purpose for which the document was created, but the document must have been prepared substantially for the purpose of, or in connection with, litigation that is either pending or anticipated. There must be more than a vague anticipation of litigation; for the court to conclude that a document was so prepared, the expectation of litigation must have been reasonable in the circumstances.

So, for example, the ordinary files maintained by a person in the conduct of his or her business or affairs will rarely meet the test. Reports that are required to be prepared by legislation governing a business of the party concerned are also unlikely to meet the test.

What is Solicitor Client Privilege?

What is solicitor client privilege?

Solicitor client privilege—also known as legal advice privilege—attaches to confidential communications between the client and his or her legal counsel made in the course of obtaining legal advice. It exists any time a client seeks legal advice from his or her lawyer, whether litigation is involved or not. Its purpose is to afford protection over lawyer-client communications which is necessary to allow people to obtain legal advice.

The interest that underlies the protection given to communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If a person can’t confide in their lawyer knowing that what is said will not be revealed, it will be difficult—if not impossible—for that person to obtain proper candid legal advice.

How Does Litigation Privilege Differ from Solicitor Client Privilege?

Litigation privilege is geared directly to the needs of the adversarial trial process. It’s based on the recognized need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate.

The Supreme Court of Canada has summarized the difference between the two types of legal privilege as follows: litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).

The Supreme Court of Canada has identified the following important differences between litigation privilege and solicitor client privilege:

  • The principle “once privileged, always privileged” is vital to solicitor client privilege, whereas litigation privilege comes to an end—unless related litigation remains pending—upon the termination of the litigation that gave rise to the privilege. In other words, solicitor client privilege is permanent, whereas litigation privilege is temporary and expires when the litigation ends (unless closely related proceedings continue).
  • Litigation privilege can be claimed by represented parties and unrepresented parties. Parties to litigation, whether represented or not, must be able to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.
  • True lawyer-client privilege applies only to confidential communications between a client and his or her lawyer. It arises at any time when a client seeks legal advice from a lawyer whether or not litigation is involved. Litigation privilege, on the other hand, applies to non-confidential documents and communications between the lawyer, the client, and/or third parties.

One feature that is common to both types: Privilege can be waived voluntarily, by implication, or even by accident. Once privilege is lost, you may not be able to get it back. For that reason, parties to litigation must be extremely cautious.

How do you know if a Document or Communication is Privileged?

How do you know if a document or communication is privileged?

Litigation often involves hundreds, if not thousands, of pages of documents. The issue of privilege is highly contextual. The only way to determine whether documents are privileged is to carefully review and analyze each one. If it contains legal advice or meets the dominant purpose test, privilege should be asserted.

Generally speaking, parties to litigation must disclose documents in their possession that pertain to the case by preparing a list of documents. Privilege entitles a person to withhold a document, but the privileged document must be listed in their list of documents along with the grounds for the type of privilege they are claiming.

A party can claim privilege over any document or communication, but that claim can be challenged by the other parties. The onus is on the party claiming privilege to demonstrate the privilege claimed. Affidavit evidence will be necessary to substantiate the privilege claimed.

Need Help With the Issues of Privilege, Investigation, or the Information Gathering Process?

The litigation process can be highly challenging without the right advice. Issues surrounding privilege are complex. If you are contemplating litigation or are already embroiled in a lawsuit, it is essential to consider all avenues for building your case and obtaining evidence to support it. We recommend consulting with one of our experienced litigators to discuss your unique circumstances and the potential options for information gathering and protecting evidence in your case.

Have questions about a topic?

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