Simon's Megalomaniacal Legal Resources

Evidence - Privilege - General

Generally, 'privilege' occurs when a confidence over communications is respected by the courts. So for instance, it will prevent some communications from being adduced in evidence in a court or disclosed to another party in pre-trial disclosure. Whether the communication is 'privileged' depends on the circumstances in which it is made, and there are several categories of privilege depending on the different circumstances.

Historically, privilege applies if the situation in which the communication arises meets the four Wigmore criterion:

• the communication must arise in a confidence that the identity of the informant will not be disclosed;
  
  
• the confidence must be essential to the relationship in which the communication arises;
  
  
• the relationship must be one which should be “sedulously fostered” in the public good; and
  
  
• that the public interest is served by protecting the identity of the informant outweighs the public interest in getting at the truth.

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. 1307839 Ontario Limited et. al. v. Klotz Associates et. al.

In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered the appellate SOR for issues of privilege:

[19] A determination of whether evidence is privileged is a question of law and so the applicable standard of review on appeal is correctness: see Leadbeater v. Ontario, 2004 CanLII 14107 (ON SC), 70 O.R. (3d) 224, at para. 29; Kennedy v. McKenzie, 17 C.P.C. (6th) 229, at para. 15; and Laliberté v. Monteith, 2021 ONSC 4133, 155 O.R. (3d) 596 (Ont. Div. Ct.), at para. 24.

. Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case]

In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court sets out the Wigmore criteria for evidentiary privilege:

[76] With respect to the question of whether the PAC Memorandum was privileged, the Appeal Division Panel correctly identified the legal principles to be considered in determining the issue, relying on the four Wigmore criteria, as set out by the Supreme Court of Canada in Slavutych v. Baker.[72] Those four criteria 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 which in the opinion of the community ought to be sedulously fostered.

(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.[73]

. Canada (Transportation Safety Board) v. Carroll‑Byrne

In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.

Here the court considers the very basic public interest purpose evidence-gathering, in contrast to a specific statutory privilege:

[92] What Parliament has designated as the public interest in the proper administration of justice concerns a party’s right to a fair trial and to present all relevant evidence that is necessary to resolve the dispute (see Dubin Report, at p. 234; International Civil Aviation Organization, Manual on Protection of Safety Information, Part I — Protection of Accident and Incident Investigation Records, Doc. 10053 (1st ed. 2016), s. 3.3.37.1; Hyde Park, at para. 74; Air France, at paras. 121 and 138). At its core, this relates to the question of whether withholding evidence would interfere with the fact‑finding process to such an extent that it would undermine a party’s right to a fair trial and, consequently, public confidence in the administration of justice. But relevancy and trustworthiness are not absolute values; the very existence of the privilege suggests that Parliament is prepared to subordinate the truth‑finding function of a civil trial to what it sees as potentially higher values.

....

[101] I note, without commenting further, that the nature of the proceeding may be relevant to the final balancing, in that criminal or disciplinary proceedings may engage different interests (see, e.g., Dubin Report, at pp. 234‑35, which stated that the considerations that apply to criminal and disciplinary cases may differ from civil proceedings). There are also additional procedural protections that limit the use of CVR evidence, including a firm prohibition on the use of CVRs in disciplinary proceedings against pilots or proceedings related to the competency of pilots, in addition to other legal proceedings involving, in particular, air traffic controllers (s. 28(7)). The chambers judge did not lose sight of this, recalling the prohibition in s. 28(7) explicitly in making his order (para. 69).

....

[111] The ultimate balancing requires the court or coroner to identify the relevant factors and decide whether, in light of all of the circumstances, the public interest in the administration of justice commands production and discovery of the CVR, notwithstanding the weight accorded to the privilege by Parliament. When measuring the public interest in the administration of justice, the decision-maker should consider the recording’s relevance, probative value and necessity to resolving the issues in dispute as factors that point to the importance of the recording to a fair trial. On the privilege side of the scale, the decision-maker should consider the effect of release on pilot privacy and on transportation safety, as fostered by free communications in the cockpit. Air France and Hyde Park correctly identified most of these factors as relevant to the balancing exercise.

[112] All parties recognize that the test for production is not a simple relevance test. Care should be taken to not order production merely because the CVR would be helpful and provide complete evidence, something that Gauthier J. in Hyde Park rightly brought to light (para. 74). As the ACPA notes, testimony from the pilots will often have gaps. That is the nature of memory and live testimony. A court must consider not only the existence or number of gaps in the evidence but also the significance of the gaps in relation to the facts and legal issues in dispute. Other ways of filling gaps, including by refreshing pilots’ memory using the Board’s report or through witness statements, should also be considered (see Laporte Affidavit, A.R., at p. 1877, para. 99). A party seeking to set aside the statutory privilege must undertake reasonable measures to obtain the necessary information from other non‑privileged sources. A similar idea is expressed in the journalistic source privilege: disclosure is only possible where the “information or document cannot be produced in evidence by any other reasonable means” (CEA, s. 39.1(7)(a); see also National Post, at para. 66, on the “alternate sources” principle).

. R v Nguyen

In R v Nguyen (Ont CA, 2015) the Court of Appeal stated on privilege:

[16] Privilege is the right of a person or class of persons to exclude certain communications from evidence or to refuse to testify about matters covered by the privilege. Privilege may relate to a class of relationships – for example, solicitor-client privilege – or may be established on a case-by-case basis.

Once a privileged relationship is established, privilege “presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation”: R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477, at para. 42.

. Philip Services Corp. v. Deloitte & Touche

In Philip Services Corp. v. Deloitte & Touche (Ont CA, 2015) the Court of Appeal re-stated the long-respected Wigmore test for determining privilege over information and documents, whereby such data is protected by principles of both confidentiality and evidentiary non-compellability:

[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.

. Lizotte v. Aviva Insurance Company of Canada

In Lizotte v. Aviva Insurance Company of Canada (SCC, 2016) the court sets out that there are two types of privilege, class and case-by-case:

(1) Litigation Privilege is a Class Privilege

[32] There are two types of privileges in our law: class privileges and case‑by‑case privileges. A class privilege entails a presumption of non‑disclosure once the conditions for its application are met. It is “more rigid than a privilege constituted on a case‑by‑case basis”, which means that it “does not lend itself to the same extent to be tailored to fit the circumstances”: R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477, at para. 46. On the other hand, “[t]he scope of [a] case‑by‑case privilege”, as the name suggests, “will depend, as does its very existence, on a case‑by‑case analysis, and may be total or partial” (National Post, at para. 52). The four “Wigmore criteria”, the last of which is a balancing of the interests at stake, are applied:

The “Wigmore criteria” consist of four elements which may be expressed for present purposes as follows. First, the communication must originate in a confidence that the identity of the informant will not be disclosed. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good (“Sedulous[ly]” being defined . . . as “diligent[ly] . . . deliberately and consciously”). . . . Finally, if all of these requirements are met, the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. . . .

.....

The fourth Wigmore criterion does most of the work. Having established the value to the public of the relationship in question, the court must weigh against its protection any countervailing public interest such as the investigation of a particular crime (or national security, or public safety or some other public good). [paras. 53 and 58]

[33] In my opinion, litigation privilege is a class privilege. Once the conditions for its application are met, that is, once there is a document created for “the dominant purpose of litigation” (Blank, at para. 59) and the litigation in question or related litigation is pending “or may reasonably be apprehended” (para. 38), there is a “prima facie presumption of inadmissibility” in the sense intended by Lamer C.J. in R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263:

The parties have tended to distinguish between two categories: a “blanket”, prima facie, common law, or “class” privilege on the one hand, and a “case‑by‑case” privilege on the other. The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). [Emphasis deleted; p. 286]

[34] From this perspective, litigation privilege is similar to settlement privilege and informer privilege, which the Court has already characterized as class privileges: Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 (CanLII), [2013] 2 S.C.R. 623, at para. 12; R. v. Basi, 2009 SCC 52 (CanLII), [2009] 3 S.C.R. 389, at para. 22. Like them, litigation privilege has long been recognized by the courts and has been considered to entail a presumption of immunity from disclosure once the conditions for its application have been met: Blank, at paras. 59‑60; Compagnie d’assurance AIG du Canada v. Solmax International inc., 2016 QCCA 258, at paras. 4‑8 (CanLII); Groupe Ledor inc., at paras. 8‑9; St‑Pierre, at para. 41; Axa Assurances inc. v. Pageau, 2009 QCCA 1494, at para. 2 (CanLII); Conceicao Farms Inc. v. Zeneca Corp. (2006), 2006 CanLII 31976 (ON CA), 83 O.R. (3d) 792 (C.A.), at paras. 20‑21; College of Physicians and Surgeons of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665 (CanLII), 23 C.P.R. (4th) 185, at paras. 31‑33 and 72; Apotex Fermentation Inc. v. Novopharm Ltd. (1994), 95 Man. R. (2d) 186 (C.A.), at paras. 18‑20; R. v. Brouillette (1992), 1992 CanLII 3599 (QC CA), 78 C.C.C. (3d) 350 (Que. C.A.), at p. 368; Opron Construction Co. v. Alberta (1989), 1989 ABCA 279 (CanLII), 100 A.R. 58 (C.A.), at para. 5.