Case Report – PEI Court of Appeal says civil rules trump litigation privilege

On August 26th, the Prince Edward Island Court of Appeal issued a principled judgement on the scope of litigation privilege as it stands against the production and discovery requirements in the Nova Scotia civil rules.  

Rule 31.06 in the Prince Edward Island Rules of Court governs oral discovery and requires a person who is examined to answer “any proper question relating to any matter in issue in the action.” The identical provision exists in the Ontario Rules, where it has been interpreted to override litigation privilege subject to provision’s own express limitations.  The PEI Court of Appeal explained:

The Ontario courts give a plain meaning to Rule 31.06 and a meaning that can be reconciled with Rule 30 which permits a claim for privilege over a document itself. Rule 31.06 means that information relevant to matters in issue must be disclosed in oral discovery, and to this extent the right of litigation privilege has been abrogated.  Documents remain protected from disclosure but the evidence in a particular document which is relevant to the proof of the facts in the matter must be disclosed in accordance with Rule 31.06.  The opinions obtained by a party from an expert and which the party may find unfavourable to its position continue to be protected by litigation privilege upon the undertaking from the party that the opinion will not be relied upon at trial.

It endorsed this approach and rejected the contrary position taken by the Manitoba Court of Appeal, which has held that the Ontario (and now Prince Edward Island) view may “fatally main the litigation privilege rule.”

Llewellyn v. Carter, 2008 PESCAD 12.