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ARTICLE · 27 NOVEMBER 2023

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What Can Happen When One Party Accesses The Other Side's Privileged Information?

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The Ontario Court of Appeal has decided an important case about what can happen when a party to litigation accesses the other side's privileged communications.

CanadaLitigation, Mediation & Arbitration
Vera Toppings
Vera Toppings
Carolyn Flanagan
Carolyn Flanagan
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The Ontario Court of Appeal has decided an important case about what can happen when a party to litigation accesses the other side's privileged communications. In 2177546 Ontario Inc. v. 2177545 Ontario Inc., 2023 ONCA 693, the court upheld the motion judge's decision striking out a notice of appearance and ordering that the underlying application proceed undefended — prohibiting the party who accessed the privileged information from defending the application.

This case arose in the aftermath of a relationship breakdown between two former brothers-in-law who, through their respective holding companies, carried on business together in a group of related corporations. This group had created an email address for itself, which one brother-in-law (the principal of 546 Inc.) used as his personal account. In 2021, after litigation commenced, the other brother-in-law (the principal of 545 Inc.) was then granted access to this account by an Information Technology (IT)

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