On December 14th, the Ontario Superior Court of Justice issued a principled judgement on litigation privilege, commenting on both the nature of the evidentiary burden on a party claiming the privilege and the burden on a party seeking disclosure notwithstanding the privilege on the basis that the records would be arguably relevant to the misconduct alleged.
The Court held that the party claiming litigation privilege has either a one or two-step evidentiary burden. Where the court can infer from the circumstances that all documents prepared after litigation is reasonably anticipated were prepared for the dominant purpose of the anticipated litigation, it will do so, meaning that the claimant need only prove that litigation is reasonably anticipated. Where such an inference cannot reasonably be drawn (where there are numerous issues between the parties, only some of which being the subject of reasonably anticipated litigation, for example), the party claiming privilege must prove that litigation is reasonably anticipated and must also prove, on a record-by-record basis, that the records were prepared for the dominant purpose of the anticipated litigation.
On the burden facing a party who seeks disclosure notwithstanding litigation privilege, it held that relevance alone will not overcome the privilege. This case involved a bad faith claim against an insurer. The plaintiff had argued the insurer’s claim file was highly relevant and that the it would be constrained in proving bad faith without it. The Court disagreed, holding that a party seeking records subject to privilege must prove a prima facie case of misconduct first.
I noticed this case after reading a very good and far more detailed entry on Cavanaugh Williams’ blog, an excellent blog on civil litigation and insurance law. Please see its summary here.