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Principles of Litigation Privilege

In Walsh Construction Company Canada v. Toronto Transit Commission, 2020 ONSC 3688, Master McGraw went over the main principles of litigation privilege:

  • Litigation privilege is a fundamental principle of the administration of justice which serves an overriding public interest to ensure the efficacy of the adversarial process by protecting communications and documents created for the dominant purpose of use in, or advice concerning, actual, anticipated or contemplated litigation.
  • Parties to litigation must be left to prepare their contending positions in private without adversarial interference or fear of premature disclosure by creating a “zone of privacy”, a protected area to facilitate investigation and preparation of their case for trial.
  • Litigation privilege is a limited exception to the principle of full disclosure which is narrower than solicitor-client privilege.
  • It is not necessary for the party asserting litigation privilege to establish that documents or communications were created for the sole purpose of pending or apprehended litigation. There can be more than one purpose.
  • The party claiming litigation privilege has the onus of establishing an evidentiary basis or foundation for its privilege claim on a balance of probabilities.
  • Blanket claims and bald assertions of litigation privilege or merely asserting that privilege attaches are insufficient, especially in the absence of firsthand evidence of a dominant litigation purpose from the creator of the documents in question.
  • Evidence from an uninformed witness swearing that they believe an assertion made by someone else is of little to no probative value.
  • However, there may be circumstances where a senior manager is as well or better placed than the document’s author to provide evidence of the dominant purpose of the document, in particular, when the document was prepared or sent under the supervision or authority of the manager.