Privilege Wins Out Over Document Production Requests, Orders And FOI Legislation - SCC Confirms Status Of Solicitor-Client Privilege And Litigation Privilege

Last week, the Supreme Court of Canada (“SCC”) issued a pair of companion decisions clarifying the law regarding privilege.  Notably, these decisions: (1) cement and arguably elevate the status of litigation privilege; and, (2) make clear that solicitor-client privilege is a fundamental principle of law even when pitted against claims made under freedom of information regimes.

Solicitor-client privilege and litigation privilege are well understood to be conceptually distinct concepts.  The purpose of solicitor-client privilege is to protect a relationship. The role of litigation privilege, on the other hand, is to ensure the efficacy of the adversarial process by preventing the disclosure of communications whose dominant purpose is to prepare for litigation (i.e.: a lawyer’s file, oral and written communications between lawyers and third parties such as experts or witnesses).  Moreover, solicitor-client privilege is permanent, while litigation privilege applies only