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Simon Shields, LLB

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Since 2005

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Evidence - Privilege

Philip Services Corp. v. Deloitte & Touche (Ont CA, 2015)

In this case the Court of Appeal re-stated the long-respected test for determining privilege over information and documents, whereby such data is protected by principles of both confidentiality and evidentiary non-compellability. In Canadian law privilege is not established by the nature of the relationship in which the data was generated (eg. solicitor-client) but on a case-by-case basis:
[18] The four elements examined in analyzing a case-by-case privilege – the Wigmore criteria[1] – are as follows:
1. the communication must originate in a confidence that they will not be disclosed;

2. the confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;

3. the relation must be one which in the opinion of the community ought to be sedulously fostered; and

4. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

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