On Friday, the Supreme Court of Canada held that a legislative provision cannot abrogate litigation privilege unless it does so with clear, explicit and unequivocal language.
This principle was established for solicitor-client privilege by the Court in its Blood Tribe decision of 2008. It now extends to litigation privilege.
The Court also used Friday’s decision to establish litigation privilege as a “fundamental principle of the administration of justice.” It affirmed:
- litigation privilege is a class privilege, entailing a presumption of immunity from disclosure once the conditions for its application have been met;
- litigation privilege is only subject to clearly defined exceptions and not to a case-by-case balancing exercise; and
- litigation privilege can be asserted against third parties, including third parties who have a duty of confidentiality.
Litigation privilege retains its status as a kind of junior privilege to the almighty solicitor-client privilege. According to the Court, however, litigation privilege is an important, class privilege that behaves like a class privilege. Arguments that litigation privilege must give way to the truth seeking function because of the circumstances will now ordinarily fail.
Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (CanLII).