Supreme Court Of Canada – Litigation Privilege: An Obstacle To Investigative Powers

The authors wish to thank Daniel-Nicolas El Khoury, Marketing Intern, for his contribution

The Supreme Court of Canada rendered on November 25th, 2016 an awaited judgment, bringing distinctions between the notion of litigation privilege and solicitor-client privilege. In Lizotte v. Aviva Insurance Company of Canada ¹, the Court rules that a law must be clear to set aside the privilege. The decision confirms the application of litigation privilege to third party investigators, such as a syndic, despite their duty of confidentiality and their oath of discretion.

After a fire damaged a residence, the Respondent, Aviva, Insurance Company of Canada, assigned one of its claim adjusters to investigate the loss. The syndic of the Chambre de l'assurance de dommages ("ChAD") received information alleging that the claims adjuster failed to carry out his duty adequately, and consequently launched an investigation on the adjuster's conduct in handling the insured's claim.