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ARTICLE · 28 MAY 2015

What Lies Beneath: The Unexpected Reach Of Litigation Privilege

McCarthy Tétrault
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No Limits Sportswear Inc. ("No Limits") manufactures and distributes men's underwear products under the name "Saxx", designed and produced by Saxx Apparel Ltd., now a subsidiary of No Limits.

CanadaLitigation, Mediation & Arbitration
Kate Findlay
Kate Findlay
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In an interesting decision clarifying the reach of litigation privilege, the British Columbia Court of Appeal in No Limits Sportswear Inc. v. 0912139 B.C. Ltd., 2015 BCCA 193, has recently held that litigation privilege extends to communications between formerly adverse parties who have settled their dispute and are cooperating against a remaining co-defendant, even where the pleadings have not yet been amended to reflect this new reality.

Background

No Limits Sportswear Inc. ("No Limits") manufactures and distributes men's underwear products under the name "Saxx", designed and produced by Saxx Apparel Ltd., now a subsidiary of No Limits. Respondents 0912139 B.C. Ltd, Package Holdings Inc., Keyhole Technologies inc. Dustin Bigney, Desmond Price, Scott Hanna, Pakage Apparell Inc. and Greg Alfonso (together, the "Package Parties") manufacture and distribute a competing line of men's underwear under the name "MyPackage".

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