CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
documents. The court will consider the relevance and materiality of the document to the proceedings as well as any prejudice to the third party. As a condition of the court, the court will likely require the request- ing party to reimburse the third party for reasonable expenses for copying or producing the documents if required. Examination of an adverse party’s expert witness may also be available before trial, either by consent or with leave of the court. 5.3 Discovery in This Jurisdiction The general approach to discovery of documents is that, subject to claims of privilege, relevant and mate- rial documents must be disclosed to parties to the liti- gation. A party receives documents under an implied undertaking of confidentiality not to use or disclose them outside the litigation in which they were pro- duced. Parties are also expected to manage litigation in a manner that is proportionate to the amount involved, the importance of the issues and the complexity of the proceedings. 5.4 Alternatives to Discovery Mechanisms This is not applicable to the common law jurisdictions in Canada. 5.5 Legal Privilege The courts recognise both solicitor-client privilege and litigation privilege. Solicitor-client privilege is not only an evidential right but also a fundamental and substantive rule of law, and must remain as close to absolute as possible. To claim solicitor-client privilege, a party must meet the following test: • a communication exists between an individual and a legal professional (written or oral); • the communication is confidential; and • the communication must be for the purpose of obtaining legal advice.
There is no official difference between in-house coun- sel and external counsel regarding the test for solic- itor-client privilege. However, in-house counsel are often consulted to give business advice, which is not covered by solicitor-client privilege. Litigation privilege covers communications that were created in contemplation of litigation (which must be a reasonable prospect) for the dominant purpose of use in litigation. This form of communication does not require the involvement of a legal professional. A document or question may be covered by both solicitor-client privilege and litigation privilege. 5.6 Rules Disallowing Disclosure of a Document A document may be withheld on other grounds of class privilege, such as settlement privilege or par- liamentary privilege. Common law also recognises that a case-by-case privilege may arise in particular circumstances. The claiming party must establish the existence of this privilege. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief A variety of injunctive relief is available. Injunctions may be prohibitive (ie, restrain a party from doing something) or mandatory (ie, require a party to do something). Injunctions are grounded in the courts’ equitable juris- diction and are discretionary. Even if the test for grant- ing an injunction is met, the court may deny relief if there are equitable bars to relief (such as laches) or the moving party fails to comply with equitable maxims (such as clean hands). Injunctions are typically award- ed where damages are not adequate alternative relief. Types of injunctions include the following. • Quia timet injunctions: granted before any harm is actually suffered, although the probability of irrepa- rable harm is great. • Interim or interlocutory injunctions: granted to maintain the status quo or prevent irreparable harm
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