Last verified on Thursday 9th February 2017
In Canada, there are four kinds of privilege that can be applied to protect communications by a lawyer and a client: solicitor–client privilege, litigation privilege, settlement privilege, and case-by-case privilege. This question briefly summarises the four main types of privilege and elaborates with respect to specific questions below. In general, the responses in this questionnaire relate to solicitor-client privilege, unless otherwise indicated.
Communications between lawyers and clients are protected from disclosure to third parties by solicitor-client privilege, which has developed as a substantive rule of common law. Solicitor–client privilege protects: (i) all direct communications (be they oral or documentary), (ii) prepared by a lawyer or passed between a lawyer and client; (iii) that are made for the purpose of providing legal advice; (iv) where the client intends for the communications to be made in confidence. Thus, privilege is based on the nature, subject matter and intentions of the parties and does not apply because of the mere presence of a lawyer. However, where there is a question of whether privilege should apply, it is generally resolved by courts in favour of protecting the communication.
The rationale for solicitor-client privilege as described by the Supreme Court of Canada (the SCC) is based on the fact that "the relationship and the communications between solicitor-and-client are essential to the effective operation of the legal system" (R v Gruenke, [199103 SCR 263, at 232,  81 DLR (4th) 211). In order to properly represent their clients, lawyers in Canada must be apprised of all relevant facts and clients must be able to divulge this information without fear of reprisals.
Privilege is not absolute in Canada, but it is protected by Canadian courts in a manner that makes it as a close to absolute as possible. The exceptions to privilege include the following: where the innocence of an accused is at stake; where the communications are criminal or are solicited to facilitate the commission of a crime; when the public safety requires protection; or when privilege has been limited by a validly enacted statute. Privilege is limited to communications and thus any non-communicative information will not be covered by privilege. Non-communicative nature may include the movement of funds in the lawyer's trust fund, physical evidence discovered by a lawyer, or the actions taken as a result of the advice are not privileged.
Another type of privilege that applies to lawyers is litigation privilege. This privilege applies to all communications that are made in the course of or in contemplation of litigation where the dominant purpose of the communication is the pending litigation. Litigation privilege is broader than solicitor-client privilege, as it can protect otherwise non-confidential information and can also be used to cover communications with third parties directly involved in litigation.
Settlement privilege applies to communications made with lawyers and with the opposing party that are made in the context of settlement negotiations. In addition to protecting pre-settlement discussions from disclosure, it also applies to the concluded settlement agreement.
In addition to the class-based privilege of solicitor-client privilege, there are certain instances where privilege can be asserted on a case-by-case basis. In these circumstances, the "Wigmore test" is applied to determine whether the communications should be deemed privileged. The four criteria of the Wigmore test are:
(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation (R v McClure, 2001 SCC 14, at para 29).
Where the communication meets the four criteria of the Wigmore test, it may be protected by privilege. However, while this test can be used to determine whether certain communication should be elevated from confidential to privilege, it is often used in the context of determining whether communications with non-lawyers, such as paralegals or religious advisers, are covered by privilege.
As described above, solicitor–client privilege in Canada is limited to the provision of legal advice. Privilege does not apply because of the mere presence of a lawyer or in circumstances where the advice is not legal in nature.
As briefly described above, litigation privilege is a concept separate from solicitor–client privilege, though it is similar in effect and subject to the same exceptions. Litigation privilege, in contrast to solicitor–client privilege, applies to communications that are made in the course of or in contemplation of the litigation process, which may include information that would otherwise not be confidential and could even include information that is non-communicative in nature. In order for communication to be protected by litigation privilege, there must be current litigation or a reasonable contemplation of litigation and the dominant purpose of the communication must be for use in the current or contemplated litigation. To determine the dominant purpose of a communication, the courts will consider the primary purpose of the communication at the time it was made. Litigation need not be the only purpose for to communication; however, it must be the primary purpose.
Litigation privilege is not limited to communications between solicitor and client, but can be asserted against third parties, such as third party investigators with a duty of confidentiality. In fact, the involvement of lawyers is not always required where the communicator or document is made or prepared for the purposes of litigation. Another important distinction between solicitor–client and litigation privilege is that litigation privilege ceases upon the conclusion of the litigation that gave rise to the privilege, though the privilege can extend where there is "closely related" privilege.
A similar concept to litigation privilege is that of settlement privilege, which protects communications created for or communicated in the course of settlement negotiations. This privilege has been broadly protected and can even include concluded settlement agreements. The privilege belongs to both parties and cannot be unilaterally waived by either unless there is a dispute as to whether there was a concluded settlement agreement.
Where documents are made for the purpose of providing legal advice where the client intends for the communications to be made in confidence, they will be prima facie privileged. Privilege also applies to materials that are directly related to the provision of legal advice, such as working papers. A document need not contain the actual legal advice in order to be privileged as long as it was part of an exchange that led to legal advice (for example, a string of emails setting out certain information that results in a legal opinion being rendered by a lawyer).
Lawyers in Canada have an ethical duty and professional obligation to keep client information and communications confidential, which is separate from the substantive common law rights of clients to solicitor-client privilege. Confidentiality applies to all information, written or oral, between a client and lawyer in the solicitor-client relationship where such information is intended to be confidential and the confidentiality is not waived by the client. Confidentiality is broader than privilege and information that is confidential will not always be privileged.
In the province of Ontario, the Law Society of Upper Canada establishes the rules of confidentiality in the Rules of Professional Conduct. The rule regarding confidentiality as follows:
A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless:
(a) expressly or impliedly authorised by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted [in the Rules of Professional Conduct] (The Law Society of Upper Canada, Rules of Professional Conduct, Toronto: The Law Society of Upper Canada, at 3.3-1).
The professional responsibility of lawyers is regulated by each province in Canada, but the provinces all have similar requirements of confidentiality for lawyers practicing in their jurisdictions.
In Canada, solicitor–client privilege only applies to lawyers, as such, where privileged information is communicated in front of third parties, the information will not be privileged with respect to the third party. Similarly, because confidentiality is a professional obligation of a lawyer, a third party will only have an obligation to keep communications confidential if they also have a professional obligation of confidentiality (such as doctors) or have entered into a confidentiality agreement. This general rule regarding third parties is subject to the privilege that applies to those who work with lawyers in the ordinary course of business (such as assistants, clerks, etc).
Generally, where information that is otherwise privileged can be obtained from a non-privileged source, the information will not be considered to be privileged. In some cases, however, courts will encourage the use of non-privileged sources over waiving privilege.
As described above, the general exceptions to privilege as affirmed by the SCC include: where the innocence of an accused is at stake; where the communications are criminal or are solicited to facilitate the commission of a crime; when the public safety requires protection; or when privilege has been limited by a validly enacted statute.
The SCC has confirmed the innocence of the accused exception to privilege and have established a test: (i) the threshold question of whether the accused can show that the communication is relevant to his or her defence and is otherwise unavailable must be satisfied; (ii) assuming the threshold test is met, the accused must establish an evidentiary basis upon which the court could conclude that a communication exists that could raise a reasonable doubt as to his or her guilt; and (iii) if the accused can satisfy step (ii), the court will examine the information to determine whether the information is likely to raise a reasonable doubt as to the accused's guilt or whether there is a genuine risk of a wrongful conviction. This exception has been applied narrowly and is not interpreted as broadly as to allow an accused to make a full answer and defence. For example, it is generally applied only to communications that relate directly to an element of the offence, but would likely not apply to ancillary issues such as credibility of a witness or to suggest that evidence has been gathered in a manner that is unconstitutional.
Privilege will also be waived where the client seeks legal advice to facilitate the commission of a crime, whether or not the lawyer knows that the legal advice is solicited for this purpose. Technically, these kinds of communication are characterised as an exclusion, as privilege never applies to such communication. Similarly, in a criminal context, since solicitor-client applies only to communications, where a lawyer discovers physical evidence of a crime the evidence will not be protected by privilege. In order to establish the future crimes exception, the following elements must be met: (i) the communications must relate to future conduct; (ii) the client must intend conduct that he or she knows or ought to know is unlawful; and (iii) the wrongful conduct that is contemplated by the client must be clearly wrong. The courts are unsettled as to whether a similar exclusion should apply where the legal advice is sought for the purpose of committing a tort.
The SCC has held that a lawyer was not bound by privilege where there was a threat to public safety. In order for this exception to apply, the lawyer must reasonably believe that there is a clear risk to an identifiable person or group that is both serious and imminent. However, a lawyer is ethically bound to only disclose as much as is necessary.
Finally, the courts have acknowledged that the legislature may limit or restrict the right to assert privilege in certain circumstances if the abrogation is clearly and unequivocally made. For example, lawyers may be compelled to provide responses that include privileged information under the British Columbia Legal Profession Act.
Section 8 of the Canadian Charter of Rights and Freedoms (the Charter) protects the right against unreasonable search and seizure. This right is grounded in a right to a "reasonable expectation of privacy", which means that certain information, such as third party confidential records may be protected by the courts under the Charter where it was created with a reasonable expectation of privacy. For example, the SCC has held that records that disclose information that go to the core of an individuals' biographical details can be privileged.
Solicitor–client privilege applies equally to all lawyers – the capacity in which the lawyer works does not change the creation or character of the privilege. However, in the same manner as privilege is evaluated with respect to private practitioners, to determine whether privilege applies to in-house counsel, the nature of the relationship, subject matter of the communications, and the circumstances of advice sought must still be considered. For example, business advice provided by in-house counsel and policy advice provided by government counsel will not generally be privileged as it will not satisfy the general test. In practice, however, in-house counsel may have more difficulty demonstrating that a particular communication is privileged due to the fact that it may be difficult to determine in which capacity the in-house counsel was acting when making the communication.
In the context of in-house counsel, privilege is not generally lost when it is shared with non-management employees; however, where otherwise privileged information is widely disseminated, it may be seen to have lost privilege. With that said, in-house counsel must be aware of who their client is (the corporation, not the employee) and, thus, unless the in-house counsel is communicating with an employee who has authority to instruct counsel, the communications may not be privileged.
Where privileged information is communicated to non-lawyers in the ordinary course of business for the lawyer, this information will be protected by privilege. This principle also applies to information that is communicated to lawyers that works in the same firm as the lawyer engaged in the solicitor-client relationship. The purposes of this rule is to ensure that lawyers can utilise support staff in order to carry on business without breaching solicitor-client privilege.
This area of law is unsettled in Canada. The prevailing view is that communications made to a lawyer who is not qualified to practice law in the jurisdiction in which the advice was given or concerned will be covered by solicitor–client privilege. However, some courts have found that privilege only protects communications with lawyers who are qualified within the particular jurisdiction or province in which they provided advice (ie, communications with respect to Ontario law would only be privileged where provided by an Ontario lawyer). Given this uncertainty, it may be advisable to use an intermediary where advice from a foreign lawyer is required to preserve privilege.
However, communications with an individual who not entitled to practice law based on the requirements and regulations of the applicable law society will generally not be covered by solicitor–client privilege. For example, a court in Alberta held that correspondence with a law student was not covered by privilege because the law student was not yet qualified to be a lawyer.
An analogous privilege may be extended to non-lawyer professionals, but this privilege is generally based on the Wigmore test. The court has held in some cases that privilege can protect certain communications with doctors, religious figures, paralegals, and the press. Regardless of the application of the Wigmore test, the court has clearly stated that a solicitor-client-like privilege does not apply to these professionals and any privilege will only be applied on a case-by-case basis.
A solicitor-client relationship is established in the "usual and ordinary course" of a professional relationship. This means that a solicitor-client relationship can be established before a formal agreement is entered into between the lawyer and client (in Canada, this agreement is referred to as a "retainer"). Where privileged information is shared with a lawyer that is not under a retainer, the information will still be privileged if it meets the general test (ie, the information must still be communicated for the purpose for obtaining legal advice with the intent of being kept confidential by the client).
Privilege and all rights that flow from that privilege belong to the client, not the lawyer, and thus privilege can only be waived and rights can only be exercised by the client.
In Canada, the term waiver is defined as, "the abandonment of some right that can be exercised, or to renouncement of some benefit or advantage which, but for such waiver, the party relinquishing would have enjoyed" (Robert W. Hubard, Susan Magotiaux and Susan M. Duncan, The Law of Privilege in Canada, Release No. 36 (Toronto: Thomson Reuters Canada, 2016), at 11-66.7). Thus, in Canada, a waiver can be considered the abandonment of the right to protection of certain communications that would otherwise be privileged.
As discussed above, privilege belongs to the client, so only the client can waive privilege (subject to certain exceptions explained below). A client can only waive privilege with informed consent that is voluntary, but any waiver need not be explicit. Examples of where privilege is waived implicitly include where a communication is sent to a third party or the communication was used as evidence in another action. However, courts have held that in circumstances where privileged information is exchanged with third parties for the purposes of facilitating a commercial transaction, the exception does not have the result of changing the underlying privilege or the client's ability to waive it. Further, where privileged information is disclosed to the court for the purpose of determining whether there is privilege, this does not constitute a waiver.
Where the client is a corporation, it must be determined who has authority to waive privilege on behalf of the client. A court in one instance held that a former director could not waive privilege over documents he received while a director. Instead, the privilege belonged to the current management and directors who had a duty to act in the best interests of the corporation.
There are, however, certain circumstances in which a third party can waive privilege where it is in the interests of the client. In the wills exception, the executor of a will may waive privilege on behalf of a deceased client in certain circumstances in order to determine the true intentions of the testator as conveyed to the lawyer. In the exception for incapacity, a court may waive privilege where an individual is incapacitated in order to determine the best interests of the individual.
Generally, where there is a waiver of parts of a communication, there is deemed to be a waiver of the entire communication related to the same subject matter. However, courts will allow partial disclosure in some circumstances upon examining the communications and determining whether the opposing party would be mislead by the partial disclosure.
Where there is a joint retainer, communications to the lawyer by either party cannot be privileged from the other joint party, but all communications are privileged as between the lawyer and the clients and cannot be disclosed outside the retainer (subject to exceptions). Thus, any communications made to the lawyer will not constitute a waiver of privilege outside of the retainer, but will constitute a waiver with respect to the joint party.
While solicitor–client privilege is often asserted in the course of litigation, it has been expanded so as to be asserted with respect to legal opinions exchanged between parties with a common interest. This expansion is often seen in the context of negotiations for a commercial transaction and is based on the principle that parties to a commercial transaction have a common interest in completing the transaction. The rationale is that parties need to be free to exchange privilege information without fear of jeopardising confidentiality. However, this privilege as it applies to information exchanged between parties may be limited where the circumstances suggest a loss or waiver of privilege, such as, where the parties to a merger are adverse in interest, as the common interests of the parities could be questioned. In these circumstances, the courts will consider whether the expectations of the parties. The possibility of future adverse interests is irrelevant to the common interest exception.
Since lawyers have a professional obligation to maintain the confidentiality of their clients, in the context of a retainer between a lawyer and a client there is no need to include specific confidentiality provisions. However, any derogation from confidentiality that is permitted by the client may be included in a retainer, particularly for the purpose of protecting the lawyer from any subsequent allegations of breach of confidentiality.
Solicitor-client privilege is a common law principle, which means it has been developed by numerous decisions of judges, with a quasi-constitutional status. Statutes can be used by legislators to entrench or abrogate from privilege.
As described above, solicitor–client privilege in Canada is a substantive right that has evolved from an evidentiary principle to a quasi-constitutional right. Courts in Canada will protect solicitor-client privilege unless there are compelling reasons not to.
There are generally no differences as to how privilege will be applied in the criminal, civil, regulatory, or investigatory context. However, courts or tribunals may take into account the context when determining whether certain exceptions apply. For example, in a Manitoba case, the Court of Appeal held that where solicitor-client privilege was waived when defending criminal charges, privilege of the same communication was deemed to be waived for subsequent civil proceedings.
As a common law principle that has been determined by the SCC, privilege applies in the same manner throughout the provinces of Canada, including Quebec, which operates under the civil law. However, where there are discrete issues of privilege that have not been considered by the SCC, the courts of a province have competence to make such decisions within the framework set out by the SCC, which may result in slight differences between the provinces.
As described above, the professional associations of lawyers, generally referred to as "law societies" are responsible for the regulation of lawyers in each province. As part of their mandate, law societies have the ability to enforce the maintenance of privilege for lawyers in their jurisdiction. Discipline measures may differ slightly across jurisdictions; however, generally discipline can range from a reprimand to disbarment, depending on the severity of the breach.
Sanctions may be made by the courts against lawyers who have breached solicitor–client privilege in the form of personal costs. Lawyers can also be held responsible for breaches through civil claims of negligence, where an offending lawyer would be required to pay damages to the client. In a circumstance where a non-lawyer violated solicitor–client privilege by accessing the plaintiff's email and reading email exchanges with her lawyer, the court required the defendant to disclose the privileged information he obtained to the plaintiff, restrained him from any use of the information, and ordered him to pay all legal costs of the plaintiff.
The process for invoking privilege will depend on the context. Generally, issues of privilege will arise in the course of litigation. Parties can refuse to disclose certain documents as part of the discovery process and these refusals can be challenged by the opposing parties by filing a motion.
Witnesses in Canada are not permitted to invoke privilege in order to avoid answering questions on the witness stand. However, the testimony of witnesses that contains privileged information cannot be used against the witness in other proceedings.
When the privilege of particular communications is challenged, the party asserting that the communications are protected by privilege bears the onus of establishing privilege.
Section 8 of the Charter protects the right against unreasonable search and seizure. The SCC has held that certain provisions of the Criminal Code of Canada were unconstitutional because they inadequately protected solicitor–client privilege and section 8 of the Charter. Among other things, the court found that the legislation could lead to a breach of the clients privilege without their knowledge, let alone consent.
The SCC provided a number of guiding principles to aid Parliament in redrafting the legislation, including stating that search warrants cannot be issued for documents known to be privileged and that all documents should be sealed when retrieved from a lawyer's office in order to determine contact the clients and obtain any consents. As of the time of writing, Parliament has not enacted new legislation to replace the impugned provisions.
The issue of conflict of laws and privilege is not settled in Canada. Historically, courts viewed the choice-of-law in the context of privilege as a matter of procedure that should be governed by the laws of the forum (ie, based on domestic privilege principles). However, due to the evolution of solicitor-client privilege as a substantive principle of law, it has been suggested that the choice-of-law principles should be adapted to.
In Canada, privilege is never terminated, even upon the death of the client, unless it is waived by the client or subject to an exception. This also applies upon bankruptcy or the dissolution of a corporation. However, courts have noted that in a criminal context, rules of privilege may be relaxed after a trial as the client no longer has an interest in preserving the confidentiality of the information.
As described above, the only circumstances in which solicitor-client privilege is terminated are waiver by client or common law exception.
As discussed above, an exception (exclusion) to solicitor–client privilege is where a communication is made to further a crime or perpetuate a fraud. In these circumstances, privilege never applies to this communication and a lawyer may be compelled to disclose the information communicated by the client.
Since the ability to waive solicitor-client privilege rests with the client, inadvertent disclosure by the lawyer will generally not constitute a waiver of privilege. If the opposing lawyer refuses to disregard or return the privileged information, the disclosing lawyer may have no choice but to bring a motion for a declaration that the communication is privileged. When making such a determination, the court will analyse the claim within the factual matrix, and in particular, consider the following factors:
Further, where an inadvertent disclosure is made to opposing counsel, the court will generally imply a duty on imposing counsel to return and dispose of any copies of the materials that were received in error and advise as to what extent the information was reviewed. In one case, the court removed a law firm as counsel of record where opposing counsel received privileged information in error, reviewed the documents in detail and made copies for their own records. However, this is an extreme remedy that will be ordered sparingly.
Generally, solicitor–client privilege only applies to communications of a lawyer and client; however, there are some exceptions to this general rule. In additions to the exceptions set out herein, the courts will consider whether the communication was required for the function of the solicitor–client relationship, termed the “functional approach”. Some examples of this include a circumstance where the client instructs a third party to direct a lawyer to act on the client's behalf or the client directs a third party to seek legal advice on his or her behalf, as these examples are a central function of the solicitor-client relationship. However, where a third party is instructed to gather information to provide to a lawyer in order to provide legal advice or a third party is directed to carry out instructions of a lawyer, these roles will not be considered a key function of the solicitor-client relationship such that privilege would apply.
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