SCC issues decision lending weight to litigation privilege

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).

Ont CA addresses privilege in communicating a sex assault allegation

On July 20th, the Court of Appeal for Ontario allowed an appeal of a civil sexual assault finding and, at the same, time awarded defamation damages to the party alleged to have committed the assault.

The matter dealt with assault and sexual assault claims brought by a sister against her older brother. She alleged the assaults occurred many years ago, the action being commenced based on “recovered memory.” Before the sister commenced her claim, she came out with the allegations in an e-mail to her brother, his wife and children, her two sisters and their families, her daughters and a woman she had been friends with in high school. She then sent similar communications to the same group as well as to her own lawyer and a lawyer involved in the administration of her mother’s estate.

The Court held that communication to the family members and lawyers was subject to qualified privilege but communication to the friend was not. The privilege in communicating with the family members was rooted in the sister’s need to “prevent future abuse or seek out emotional support” and the recipient’s reciprocal interest in deciding whether to take “protective action.” The privilege in communicating with the lawyers appears to be rooted in the nature of their retainers. Regarding the friend, the Court said:

However, there was no duty or interest on the part of the respondent’s former high school friend to receive the respondent’s communications. The respondent admitted that their friendship did not last after high school had ended and that they only briefly reconnected after the death of the respondent’s mother.  She did not testify as to her reason for copying the friend on the defamatory emails. There was no evidence that she asked her friend for assistance or advice, or that the friend ever responded to her communications. In these circumstances, there was no legitimate interest to be protected by the statements; as a result, they did not merit protection under the auspices of qualified privilege:  R.T.C. Engineering, at para. 15; Milgaard v. Mitchell (1996), 1996 CanLII 6950 (SK QB), 151 Sask. R. 100 (Q.B.), at para. 36.

Assault and sexual assault survivors can describe their allegations in seeking assistance and pursuing complaints, but may be liable for communicating their allegations too broadly. This finding gives fairly permissive scope to the (protective) qualified privilege doctrine, but also illustrates that its protection is has limits.

The Court also made a finding about the use of opinion evidence for the purpose of assessing credibility. This use of evidence is impermissible as “oath helping” and, in this case, rendered the trial judge’s sexual assault finding erroneous.

Whitfield v Whitfield, 2016 ONCA 581 (CanLII).

Case Report – Court reminds us the spoliation inference is based on more than a missing record

On December 18th, Mr. Justice Flynn of the Ontario Superior Court of Justice dismissed an argument for a spoliation-based adverse inference.

The respondents argued against an application for occupation rent that was brought by a tenant in common’s estate trustees. They claimed, in part, that the applicants suppressed a letter referred to in the testator’s will that was in their favour.  The applicants couldn’t find the letter, which they claimed they had never seen. In dismissing the spoliation argument, Flynn J. said:

The onus to prove that such a missing letter actually existed and that it is being suppressed by the Applicants – a serious allegation – is clearly and heavily on the Respondents and the Respondents’ evidence has not risen above mere speculation or conjecture.

Gladding Estate v. Cote, 2009 CanLII 72079 (ON S.C.).

Case Report – Ontario court says spoliation inference doesn’t hinge on bad faith

In this product liability case, the Ontario Superior Court of Justice dismissed a defendant’s motion for a spoliation inference brought because the plaintiff destroyed a ventilation fan that it later argued had caused the damaging fire.

The plaintiff ultimately failed in making its claim that the defendant breached a duty to warn them of the inherent dangers in using the fan and the need to address these dangers through regular maintenance. The plaintiff did, however, meet its first evidentiary hurdle – proof that the fan actually caused the fire, a point disputed by the defendant partly based on the plaintiff’s destruction of the fan.

The fire occurred in mid-September. The fire inspector from the local fire department concluded the fan had caused the fire, and in early October the plaintiff’s insurer retained an expert who reached the same conclusion. In February of the following year the expert disposed of the fan after receiving an instruction from the plaintiff’s insurance adjuster. The plaintiff filed its claim over three and a half years later. Given the missing evidence, the defendant produced an expert report that was based on a review of photographs and other documentary production rather than the fan itself.

The Court made a number of broad statements in disposing of the spoliation motion. Most significantly, it held that in Ontario (as opposed to the approach seemingly favoured British Columbia) proof of bad faith is not required to support an inference that the evidence destroyed would have been favourable to the party who destroyed it. There are other elements of the spoliation decision that are more difficult to decipher but, in the end, the Court decided for the defendant on other grounds.

Dickson v. Broan-NuTone Canada Inc., [2007] O.J. No. 5114 (Q.L.) (S.C.J.).