CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
5.4 Alternatives to Discovery Mechanisms This is not applicable to the common law juris- dictions in Canada. 5.5 Legal Privilege The courts recognise both solicitor-client privi- lege 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. In order 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 counsel and external counsel regarding the test for solicitor-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 involve- ment of a legal professional. A document or question may be covered by both solicitor-client privilege and litigation privilege.
The examination of witnesses is usually agreed to by the parties, but if there is a dispute, a fur- ther notice or court order may be required to compel a witness to attend. On application, the court will consider whether the third party has relevant and material information to the dispute. The court may also limit the number of individu- als that an adverse party may examine. Court orders are also required for the produc- tion of documents in the possession or control of third parties if that party refuses to provide any requested 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 requesting party to reim- burse the third party for reasonable expenses for copying or producing the documents if required. Depending on the jurisdiction in Canada, exami- nation 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 material documents must be disclosed to parties to the litigation. A party receives docu- ments under an implied undertaking of confiden- tiality not to use or disclose them outside the litigation in which they were produced. 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.
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