CIVIL LITIGATION BASICS FOR LEGAL SUPPORT STAFF
—2009 UPDATE
PAPER 3.1
Solicitor and Client Privilege in Civil Litigation
Cases
These materials were prepared by Robert C. Brun, QC, of Harris & Brun, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, December 2009.
3.1.1
SOLICITOR AND CLIENT PRIVILEGE IN CIVIL LITIGATION CASES
I. What is Privilege?... 2
II. Solicitor/Client Communication... 2
A. Legal Advice Privilege ... 2
III. Litigation Privilege... 2
IV. Communications for the Purposes of Anticipated Litigation ... 3
V. The Adjusting Stage and the Litigation Stage ... 3
VI. Solicitor’s Brief Privilege... 3
VII. Solicitor’s Brief and Privilege in Personal Injury Litigation... 4
VIII. Communications between the Client and Third Parties... 4
IX. Loss of Privilege ... 4
X. Voluntary Disclosure to Third Parties... 5
XI. Partial Disclosure of a Communication... 5
XII. Legal Advice Placed in Issue by the Pleadings ... 5
XIII. Involuntary Disclosure to Third Parties... 5
XIV. Disclosure to Parties with a Common Interest... 6
XV. Privilege in Subsequent Actions ... 6
XVI. Asserting a Claim for Privilege ... 6
A. List of Documents... 6
XVII. The Application for Production ... 6
XVIII. Attacking a Claim for Privilege... 6
XIX. What is a Sufficient Description?... 7
XX. Summary ... 7
I wish to commence this paper by making the admission that much of the content herein has been taken from the CLEBC publication Discovery Practice in British Columbia, written by my firm partner, Lyle G. Harris. Mr. Harris’s text is now updated for 2009. For civil litigators in BC, the book is an excellent resource. Since the original publication, I have been told by many lawyers over the years that they rely on it extensively as a source material for examination for discovery procedures, as well as documentary discovery.
I.
What is Privilege?
Privilege relates to communications and not to facts. Privileged documents are exempted from
production and privileged communications cannot be canvassed at examination for discovery, through interrogatories, or in a cross-examination at trial unless privilege has been waived.
Generally speaking there are three kinds of solicitor-client privilege. These are:
(1) communications between solicitor and client which are absolutely privileged where the purpose of the communication is legal advice (legal advice privilege);
(2) communications between a solicitor on behalf of a client, or the client and a Third Party are privilege when made for the dominant purpose of preparing for ongoing or anticipated litigation (litigation privilege); and
(3) the lawyer’s work product including notes, information and reports collected by the lawyer to prepare for litigation or to give legal advice (lawyer’s brief privilege) (Blank v. Canada (Minister of Justice), 2006 SCC; Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 (Gray J.)).
For the purposes of our discussion today, I intend to consider claims for privilege arising from: (1) communications between solicitor and client, where the purpose of the
communication is to obtain legal advice;
(2) communications between a solicitor on behalf of a client and a third party where the dominant purpose was for litigation that was in reasonable prospect at the time of the communication; and
(3) solicitors brief privilege.
II.
Solicitor/Client Communication
A.
Legal Advice Privilege
Communications between a lawyer and a client, whether directly or through an agent, that are made in confidence for the purpose of obtaining legal advice, are privileged. There is no need that litigation be contemplated at the time of the communication. Solicitor and client privilege is recognized at common law. The fundamental right of an individual to consult with a lawyer is considered so essential to the legal process that the Bar and the judiciary steadfastly protect confidentiality in such circumstances. Such communications are not producible not because they are irrelevant, but because of the overriding policy reason to exclude this relevant evidence.
This principle is to some extent currently under attack in Canada and in other foreign jurisdictions. In the US, current proposals for disclosure in securities and corporate practice could erode solicitor and client privilege. Similar problems arise out of recent anti-terrorism legislation and drug money laundering concerns. Where solicitor and client confidentiality has been attacked, the various Bar associations and law societies have sought to enforce the right to claim privilege.
III.
Litigation Privilege
Litigation privilege and legal advice privilege are not “two branches of the same tree.” Legal advice privilege relates to communications between the solicitor and client. Litigation privilege can operate in the absence of a solicitor-client relationship and there is no requirement that communications be confidential in nature (Blank v. Canada (Minister of Justice), 2006 SCC 39; Keefer Laundry Ltd.).
3.1.3
IV.
Communications for the Purposes of Anticipated Litigation
It is not necessary for communications to be made directly by or to a lawyer for privilege to attach. So long as the document is produced or brought into existence for the dominant purpose of using its content in the conduct of litigation, then in existence or which is a reasonable prospect, it is privileged. In Hamalainen v.Sippola (1991), 62 B.C.L.R. (2d) 254 (C.A.) at 261 Wood J.A., stated that to
determine whether a document is privileged the Court should determine:
(a) Was litigation a reasonable prospect at the time [the document] was produced?; and (b) If so, what was the dominant purpose for its production? It is a question of fact in
each case whether the dominant purpose test is satisfied.
V.
The Adjusting Stage and the Litigation Stage
In the context of personal injury claims, there may be a distinction between documents generated for the “adjusting stage” and the “litigation stage.”
In Hamalainen,Wood J.A. noted that where litigation is in reasonable prospect, there is bound to be a preliminary period where the parties are attempting to discover the cause of the action upon which the claim is based. At some point that process changes to where the dominant purpose becomes that of preparing the parties for litigation. Wood J.A. noted:
In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts particular to each case.
Wood J.A. cautioned that the courts must be flexible in determining whether a document’s creation was for the dominant purpose of litigation. That flexibility has perplexed lawyers over the past decade and has led to countless chambers applications. Blank v. Canada suggests the line may be drawn at an earlier stage than previous cases had suggested.
As practitioners, it is fundamental that in either advancing or attacking a claim for privilege, the court is provided with sufficient affidavit material to support the proponent’s position. The onus rests with the party asserting privilege. It is fundamental for counsel to ensure that the necessary evidence is before the court to advance their client’s claim, usually in affidavit form. A failure to set out adequate affidavit material sufficient to establish litigation privilege can result in a loss of the claim of privilege over all privileged documents up to the date that litigation was commenced (Keefer Laundry; Semkiw v. Wilkosz,2009 BCSC 533, aff’d in unreported Oral Reasons for Judgement (Chambers Kirkpatrick, J.A.) B.C.C.A. June 24, 2009).
The courts will consider whether the initial purpose, which may not have been a privileged one has changed to warrant a conclusion that the communication is now confidential(Benincasa v. Agostino, [2008] O.J. No. 2943an example involving a pain dairy initially prepared to refresh memory).
VI.
Solicitor’s Brief Privilege
In Hodgkinson v.Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.), the Court of Appeal observed that in BC, there is a rule that has become known as “solicitor’s brief” privilege. This arises when a lawyer, exercising legal knowledge, skill and judgement, assembles a collection of documents, or sometimes a single document, and seeks to have that collection or document protected from production.
In Hodgkinson, the Court of Appeal noted that it may be that if the documents are disclosed, it would allow the opposing party to look into counsel’s mind. In such circumstances documents that were not
created for the purpose of litigation, but were compiled by the lawyer to advance the case, may become cloaked in privilege.
VII.
Solicitor’s Brief and Privilege in Personal Injury Litigation
In BC, the courts have made it clear that clinical records, accident records, police files, hospital records, medical consultation reports, and psychologist notes are all producible. Thus, while it may appear arguable that putting together such documents should be covered by the “solicitor’s brief” doctrine, our courts have used Rule 26(11) to order reproduction and delivery of notes and records from practitioners. As Esson C.J.S.C. stated in Steller v.Grizzle (1994), 95 B.C.L.R. (2d) 297, “unlike medical legal reports, no privilege attaches to such clinical records by their nature.”
VIII.
Communications between the Client and Third Parties
Communications between a client and a third party, such as a doctor, priest, or social worker, where litigation is not an issue, may be privileged in rare circumstances. The courts employ the Wigmore
Test, which provides:
(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 relationship between the parties.
(3) The relation must be one in which 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. For privilege to exist in this circumstance, it is essential to show that the benefit that inures from the privilege outweighs the interest in the correct disposal of the litigation.
In some circumstances, the court may order partial disclosure or restrict the persons to whom disclosure may be made. The court may order the removal of non essential material or impose conditions upon who may see and copy the documents (M. (A.) v. Ryan (1997), 1 S.C.R. 157 at 177;
Scott v. Erickson, 2009 BCCS 489).
In the Harris textbook referred to above, a number of other privilege issues are considered, including: (1) statutory privilege;
(2) settlement negotiations; and (3) settlement agreements.
IX.
Loss of Privilege
Privilege can be waived either expressly or by implication.
The case law indicates that waiver of privilege occurs where the possessor of the privilege knows of the existence of the privilege and voluntarily waives it.
Alternatively, privilege can be waived where the demands of fairness and consistency require a finding that there was an implied waiver or to otherwise ensure an equal footing such as in Rule 30
3.1.5
X.
Voluntary Disclosure to Third Parties
Privilege is waived where the possessor of the privilege voluntarily discloses the communication to a third party in a fashion that demonstrates an intention to waive the privilege.
Where privileged information is made public, there is an implied waiver. The question to be asked usually turns on whether the disclosure was in circumstances where it was intended to remain confidential. Consequently, disclosure of one expert’s opinion to another by counsel in obtaining a second opinion, likely does not waive privilege, unless the latter expert prepares a report which is served or arguably if the report is sent to a treating care provider.
It is important to abide by the Rule 26 provisions relating to timely disclosure should a partly wish to rely on a document over which a claim of privilege was asserted (see Stone v. Ellerman, 2009 BCCA 294 wherein the use of a previously undisclosed pain journal, listed inadequately in an omnibus fashion, resulted in a miscarriage of justice and a new trial being ordered).
XI.
Partial Disclosure of a Communication
It is said that one may not approbate and reprobate. If a part of a communication is disclosed, then the court may order disclosure of the balance, where fairness and consistency so requires.
This calls for particular care in disclosure of portions of an expert’s opinion or an agent’s report. By way of example, if photographs of an accident scene are disclosed, then the court may order that the agent’s report describing the photographs also should be disclosed. Care thus must be taken in partial production of any privileged document.
An example of this dilemma can be found in Chow v.Maddess (1999) Civ. L.D. 640 (B.C.S.C.), where a plaintiff exhibited in her affidavit a hand written note of a conversation, which she had given to her solicitor. It was held that the plaintiff waived privilege over her handwritten note by exhibiting it to her affidavit. This also amounted to a waiver of privilege over the solicitor’s notes on that same conversation.
XII.
Legal Advice Placed in Issue by the Pleadings
Where a party files pleadings that raise the issue of advice, then the pleading may constitute a waiver of privilege so that solicitor/client communications may be ordered disclosed.
For a fuller discussion of these issues, reference should be made to the Harris text on Discovery Practice in British Columbia. Issues covered include:
(1) reference to privileged communications on examinations for discovery; (2) waiver of privilege in a solicitor’s affidavit;
(3) alleging a breach of duty or criticising conduct of counsel; (4) privileged information contained in an expert’s report.
XIII.
Involuntary Disclosure to Third Parties
As noted above, voluntary disclosure of a communication to a third party will result in a loss of privilege. In Pfeil v. Zink (1984), 60 B.C.L.R. (2d) 32 (S.C.), the Court held that where notes taken by the plaintiff’s solicitor were inadvertently sent to the defendant solicitor, there was a waiver of
privilege. This principle may not apply in cases where there has been impropriety (i.e., the documents were stolen).
XIV.
Disclosure to Parties with a Common Interest
Where parties have a common interest in the litigation, then disclosure between the parties may not constitute waiver. This frequently happens in multiple defendant motor vehicle actions. Where there is no clear continuity of interest between the parties, disclosure can constitute a waiver.
XV.
Privilege in Subsequent Actions
Legal advice of any kind sought from a professional legal advisor is permanently protected from disclosure unless privilege is waived.
However, where the privilege is in relation to communications between a solicitor and third parties, then the privilege cannot be claimed in future litigation unless the parties and the subject matter are the same.
In motor vehicle accident cases, ICBC defends most claims in BC. Where over the years plaintiff’s have been involved in multiple lawsuits, ICBC has frequently provided defence counsel with a complete file relating to previous litigation. Where the parties to the litigation are now different, the court can order the disclosure of the entire previous litigation file, including solicitor opinions, reporting letters and adjuster’s notes. Since Juman v. Doucette, 2008 SCC 8, which upheld an implied undertaking of confidentiality over documents obtained in prior litigation as a result of the discovery process the law relating to privilege, confidentiality and disclosure pursuant to FOI (in ICBC cases, for example) has become to some extent intertwined.
XVI.
Asserting a Claim for Privilege
A.
List of Documents
As the onus to prove privilege attaches is on the party asserting privilege, it is important to describe the document on the list of documents in a way that effectively sets out the claim. A concise and authoritative claim for privilege may discourage frivolous applications for production. Where privilege is being claimed for a large number of documents, a specific claim must be made for each document. See Snow v. Friesen, 2008 BCSC 1664 and Mr. Harris’ discussion at para. 2.24 of his text.
XVII.
The Application for Production
The party asserting privilege must lead sufficient evidence on the application for production to show that the privilege should attach. Where the privilege is claimed on the basis of the “dominant purpose” test, it is not enough to merely assert this fact in the affidavit. The factual basis should be set out. In several cases, the mere assertion by an adjuster that litigation was the dominant purpose, was not sufficient, particularly when the adjuster fails to address other possible reasonable purposes for the investigation.
XVIII.
Attacking a Claim for Privilege
As a first step, the applicant should ensure that the third party has listed and described privileged documents in the appropriate fashion. The listing party is obliged to set out and describe the privileged in Part 3, of their list and to state the grounds of privilege. If it is felt that the list is
insufficient, the applicant can apply under Rule 26(3) for an order of the list of documents be verified by affidavit.
3.1.7
XIX.
What is a Sufficient Description?
Rule 26(2) states that where a party claims privilege “… the claim must be made in the list of documents with a statement of the grounds of the privilege.” In Hodgkinson, Chief Justice McEachern noted that a sufficient description would be:
Letters … and copies … tied up in a bundle marked “A. B. 1, numbered consecutively numbers 1 to 26, the same being initialled by me.”
In Leung v.Hanna (1999), B.C.L.R. (3d) 360 (S.C.), the Court held that the Hodgkinson description continued to be adequate. In Leung, the Court upheld the following description:
Document marked P3 [through P10] the same having been initialled by the handling solicitor.
The Court in Leung noted that it is now necessary to list each document individually. In other words, generic listing, such as “all documents,” will no longer suffice. It is not, however, necessary to set out specific dates or descriptions of the document.
My personal experience is that most disclosure in Part 3 is so inadequate that it is absolutely impossible to determine if a claim for privilege is properly asserted. In the result, many documents that probably are not privileged do not see the light of day.
One possible remedy is to challenge the claim and ask the court to review the documents to
specifically determine whether they are adequately described and whether privilege properly attaches. I have been involved in cases where the case management judge has required production of all
documents for which a claim for privilege was made and has reviewed them to determine whether there should be disclosure in the circumstances. However, there is no requirement for the Chambers judge to undergo this exercise (Saric v. Toronto –Dominion Bank, 1999 BCCA 556 and M. v. Ryan).
XX.
Summary
This is simply a brief overview of a very complex area of the law. As noted throughout this
discussion, the CLE publication, Discovery Practice in British Columbia, is a useful compendium of the applicable law on these issues in BC. A number of other issues are canvassed therein that cannot be conveniently addressed in the brief time available to me for this presentation.
