Federal Court Of Appeal Quells Concern Over Transactional Common Interest Privilege

A December 2016 a decision of the Federal Court caused chills for corporate lawyers across Canada when it held that common interest privilege does not apply in the transactional context where otherwise privileged material is shared between parties to the transaction. That decision has now been reversed by the Federal Court of Appeal in Iggillis Holdings Inc v Canada (National Revenue), 2018 FCA 51.

The reasoning in the now-overturned lower court decision was that the existence of transactional common interest privilege was still an open question at law. The lower court judge held its acceptance in the transactional context was an extension of principles recognized in other circumstances—either the joint defence of litigation, or where two clients retain the same lawyer to represent them (rather than two clients with their own lawyers collaborating)—but made without any meaningful analysis. As a result, the court felt free to consider the issue afresh. After a lengthy