The Supreme Court of Canada has considered the duration of litigation privilege, and concluded that litigation privilege is terminated when the litigation for which the privileged communications were created comes to an end, in Blank v. Canada (Minister of Justice), 2006 SCC 39.
Mr. Blank had requested access to documents from the Department of Justice, relying on the federal Access to Information Act. The documents related to the government's prosecution of charges against Blank and his company, Gateway, for numerous regulatory offences under the Fisheries Act. Gateway and Blank subsequently sued the government in damages for abuse of prosecutorial powers, perjury, fraud and conspiracy. The government refused to produce many documents on the basis of solicitor-client privilege, which is an express exception to disclosure under the Access Act. Blank sought an order compelling production of the documents.
The majority of the Court proceeded on the basis that the statutory reference to solicitor-client privilege in the Access to Information Act included litigation privilege, and applied common law principles of privilege in reaching their conclusions. Therefore the reasoning in Blank has general application for common law privilege. The majority distinguished between solicitor-client privilege (also known as legal advice privilege), and litigation privilege. The purpose of litigation privilege was described as being to "create a zone of privacy in relation to pending or apprehended litigation". Once the litigation is over, the privilege comes to an end, absent "closely related proceedings." "Closely related proceedings" was defined narrowly to mean separate proceedings that involve the same or related parties, and arise from the same or a related cause of action. In this case, the regulatory charges against Gateway and Blank had been stayed. The civil proceedings subsequently launched by Gateway and Blank were found not to be closely related, and thus, the litigation privilege attaching to the government's documents was terminated. The documents had to be disclosed, subject only to claims of legal advice privilege.
Confirmation that litigation privilege ends with the litigation underscores the importance of retaining counsel early in the process, to ensure that any sensitive documents or exchanges are cloaked with legal advice, and so receive lasting protection, rather than risk them later being perceived to have been created merely to further the litigation, in which case they may receive only temporary protection. In-house counsel will have to be particularly careful as well to ensure that their role is seen as being counsel and not merely a corporate officer. Other matters to consider are a document destruction policy as it concerns litigation once ended.
The Supreme Court of Canada, in a unanimous decision released on July 27, 2006, found that privilege was so important to protect that it justified the removal of counsel, where the moving party's solicitor-client communications were in possession of opposing counsel: Celanese Canada v. Murray Demolition et al, 2006 SCC 36. Celanese Canada's counsel gained possession of Canadian Bearings' confidential communications as a result of executing an Anton Piller order. All of the disputed communications were in electronic form, seized from computer storage. Carelessness and haste on the part of Celanese's counsel led to the inadvertent possession of the opposing side's privileged communications. Celanese therefore bore the onus of showing there was no real risk such confidences would be used to the prejudice of the opposing side if it wished to continue with that same counsel.
The onus was not met, and the Court therefore had to consider the appropriate remedy. Disqualification of counsel in such circumstances is not automatic, and the Court applied number of factors in deciding that in these circumstances, counsel had to be removed with respect to this proceeding and any related proceedings. Ultimately, the high importance of solicitor- client privilege was given precedence over a party's right to their choice of counsel.
The decision also discusses the highly intrusive nature of an Anton Piller order. The Court set out guidelines for the preparation and execution of such orders, including the critical responsibilities of counsel when obtaining and executing an order; the requirements to be met in obtaining such orders, and their necessary terms. This case, and its circumstances, highlights the need to engage counsel or other professionals independent from the parties, to be present while executing an Anton Piller order, and the need for a process to review documents after seizure to ensure privileged communications do not end up in the possession of opposing counsel.