Case Report – Facts gathered by legal counsel not privileged

16 Dec

On December 3rd, the Northwest Territories Supreme Court held that facts gathered by Department of Justice lawyers on behalf of the Commissioner of the Northwest Territories and a government department were not subject to litigation privilege.

The plaintiff, a government doctor, brought an action for wrongful dismissal. He was terminated for other reasons, but argued that the termination decision was tainted in part by allegations that he was a known pedophile in the United States. Department of Justice lawyers made inquires of the R.C.M.P. about these allegations, and the timing of these inquires and the facts gathered by the Department of Justice were relevant to the plaintiff’s bad faith claim. The government claimed that information related to the inquiries was subject to solicitor-client and litigation privilege.

The Court rejected both claims. It rejected the litigation privilege claim, in part, because the information was gathered by counsel. It said:

As I have already stated, the purpose of litigation privilege is to create a “zone of privacy” to facilitate investigation and preparation for trial in the context of an adversarial process. Bearing this context in mind, I think there is merit to the argument that a distinction should be drawn between information generated by investigations conducted on behalf of one’s client, or documents created by counsel in the context of imminent or existing litigation, as opposed to pre-existing information or documents that are simply copied or gathered by counsel.

This reasoning has been accepted by the Ontario Court of Appeal in Chrusz, but was left open in Blank, the Supreme Court of Canada’s leading litigation privilege judgement.

Bargen v. Canadian Broadcasting Corp., [2007] N.W.T.J. No. 101 (QL).

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