CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
Examinations for Discovery After documentary production, parties may conduct examinations for discovery of opposing parties. Cor - porate litigants must put forward a representative to answer questions under oath regarding matters rele - vant to the action, including the documents produced during discovery. Competition Bureau Materials and Privilege Documents gathered by the Competition Bureau dur - ing an investigation are not automatically available to private litigants. Access may require a court order and may be limited by statutory confidentiality protections and public interest considerations. In addition, par - ties may withhold documents protected by solicitor- client privilege, litigation privilege, or other recognised forms of privilege, provided that the claim is properly asserted and disclosed in the affidavit of documents. 6.2 Legal Professional Privilege Legal Advice Privilege Legal advice privilege (often referred to as solicitor- client privilege) protects confidential communications between a client and lawyer made for the purpose of seeking or providing legal advice. The protection applies to both external and in-house counsel, pro - vided the communication relates to the provision of legal advice rather than a purely business func - tion. The Supreme Court of Canada has repeatedly described solicitor-client privilege as a fundamental principle of justice that enjoys near-absolute protec - tion. Privileged communications are generally immune from disclosure and may only be waived by the client. Litigation Privilege Litigation privilege protects documents and commu - nications created for the dominant purpose of existing or reasonably contemplated litigation. The privilege extends beyond lawyer-client communications and may cover expert materials, witness interviews, inter - nal investigations, and other documents prepared in anticipation of litigation. Unlike legal advice privilege, litigation privilege is not a permanent class privilege and is generally tied to the litigation for which the documents were created.
Privilege Over Documents Submitted to the Competition Bureau The disclosure of information to the Competition Bureau does not, in itself, waive legal professional privilege. Communications subject to solicitor-client privilege remain protected even where a party is responding to a Bureau investigation. In addition, the Bureau cannot generally compel the production of privileged communications. Section 11 production orders issued under the Competition Act do not override solicitor-client privilege, and parties routinely assert privilege when responding to inves - tigative demands. Separate statutory protections also apply to informa - tion obtained by the Bureau. Section 29 of the Com - petition Act imposes strict confidentiality obligations on information obtained through compulsory process - es, merger notifications, and voluntary submissions, subject to limited exceptions. As a result, materials provided to the Bureau are not automatically available to private litigants in follow-on antitrust actions. Nevertheless, confidentiality under Section 29 is not absolute. In appropriate circumstances, disclosure may be ordered where required by law or by a court, subject to confidentiality protections and privilege claims. Accordingly, while Bureau records may some - times become relevant in subsequent civil proceed - ings, solicitor-client privilege and litigation privilege remain fully available to protect privileged materials. 6.3 Leniency and Settlement Agreements Leniency Agreement and Consent Orders Leniency agreements and consent orders are not subject to a single disclosure rule in Canada. As a general matter, registered consent agreements are public, whereas information provided to the Compe - tition Bureau in the course of immunity or leniency applications is typically protected by statutory confi - dentiality provisions. Consent Agreements Before the Competition Tribunal Consent agreements entered into between the Com - missioner of Competition and a party under Section 105 of the Competition Act are generally not confiden -
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