When people think of evidence, they only tend to consider it in light of a criminal trial. Evidence is at the heart of the criminal trial, so of course, this is natural. But what people may not know is that the same laws that pertain to evidence in a criminal trial are also applicable in civil litigation as well. So, whether it’s estate litigation, real estate litigation, or commercial litigation, the same rules apply across all trials to ensure consistency. In this blog post, we discuss one of these rules that you may not be familiar with: the concept of privilege. Read on to understand what privilege is, the different types of communications that would be considered privileged and exceptions to this rule of evidence.

What does it mean when information is privileged?

Privilege gives a person the right to confidentiality that protects them from disclosing communications from outside the trial setting. By virtue of privilege, a witness can refuse to answer certain questions or refuse to produce certain documents. The rule doesn’t apply to just any document, however. This is because the general rule is that the public has a right to every person’s evidence that is presented in an open court.

Generally, a finding of privilege is granted in exceptional cases. The judge needs to have all the facts before them to make an informed decision. But likewise, there is a social interest against sharing all relevant evidence when it comes to individual communications with certain professionals and others in life.

What communications are privileged?

There are a handful of classes of privilege that have been identified and apply in different legal jurisdictions around the world. However, only a few are actually recognized in Canada. The type of communication is relevant, however, to determine if it is privileged.

Solicitor-client communications

The most common type of privilege that many people are aware of is solicitor-client privilege. Communications within a solicitor-client relationship are presumed to be privileged. For this privilege to take effect, the communication must be between a professional legal advisor communicating in confidence with the client for the purpose of seeking, forming or giving legal advice. There are two exceptions to solicitor-client privilege:

  1. Future and past crimes. Privilege is not extended to communications where the client’s purpose is to commit a future crime or fraud. But privilege does protect communications involving litigation of past crimes, as is seeking legal advice to avoid committing future wrongs.
  2. Absolute necessity. Disclosure of a privileged solicitor-client communication will only be ordered where absolutely necessary. Examples of this include when a person’s innocence is at stake and the privileged communication would raise doubt as to guilt in a criminal hearing and for public safety considerations.

Communications during preparation for litigation

Similar to solicitor-client privilege, litigation privilege extends to documents produced for and communications made for the purposes of litigation. This type of privilege is distinguished because it operates even where there is no solicitor-client relationship. Not all litigants opt for legal representation, after all. This privilege includes documents prepared by third parties as well if they are collected in relation to pending or anticipated litigation. While solicitor-client privilege lasts forever, litigation privilege ends once the litigation has ended.

Common interest communications with a shared legal representative

A final type of privilege is called common interest privilege. This type of privilege exists to protect the sharing of privileged information between third parties. This type of privilege does require an initial solicitor-client relationship in order to be realized. It usually arises when a lawyer has more than one client who shares a common interest. The key is that the parties have the “self-same interest” or a common goal. But note that privilege does not attach to pure facts – courts will look at the connection between the “fact” and the communications involved in the relationship. If the fact is integral to the solicitor-client exchange, then it should be presumed to be privileged.

Why privilege?

Privilege encourages people to be candid in their discussions with others and promotes full and frank communications. It protects communications between professionals and clients, spouses, partners and family members, employees and employers. Although the types of privilege that are formally recognized in Canada tend to pertain to legal services, courts may determine communications with other professionals must be privileged on a case-by-case basis. Candour in certain types of relationships is especially important for individuals who may not be comfortable disclosing sensitive information without assurance of confidentiality (e.g. victims of abuse).

It is important to determine who actually holds the privilege

Privilege can be held by a witness or a party to a proceeding. It is essential to identify who actually holds the privilege and has the right to either claim or waive it. Waiving privilege means that the witness or party is okay allowing full access to information they have deemed private or confidential.

There are several reasons why someone might decide to waive privilege in civil litigation. Sometimes, it is most helpful to have all relevant information available to all sides of litigation. A waiver can be made either expressly or by implication.

An express waiver occurs when the person who holds the privilege voluntarily demonstrates an intention to waive it. By contrast, an implied waiver is based on both the implied intention of the holder to waive it, as well as any relevant considerations of fairness and consistency. Fairness dictates that the holder of the privileged information cannot waive privilege for mere parts of the communications to be shared.

Get Civil Litigation Help from the Lawyers at Campbells LLP

The best way to ensure your privileged communications stay confidential is to ensure you have experienced representation behind you at trial. At Campbells LLP, we leverage our considerable litigation experience to provide advice that is always in your best interests and in the best interests of your company. We represent individuals and businesses in litigation pertaining to estate law, commercial law, and real estate law. We take time to understand your matter before deciding on a course of action, keeping our clients well informed, to ensure they make the best strategic decisions at every stage. Contact us online or at (905) 828-2247.