Litigation Privilege in Canada

Litigation privilege is a common law rule that gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. This privilege has sometimes been confused with solicitor-client privilege. Solicitor-client privilege and litigation privilege are distinct: the purpose of solicitor-client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process. Solicitor-client privilege is permanent, but litigation privilege is temporary and lapses when the litigation ends. Litigation privilege applies to unrepresented parties and to non-confidential documents and is not directed at communications between solicitor and clients as such.

Although litigation privilege is distinguishable from solicitor-client privilege, it is nevertheless a class privilege and gives rise to a presumption of inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation. Thus, any document that meets the conditions for the application of litigation privilege will be protected by an immunity from disclosure unless the case is one to which one of the exceptions to the privilege applies.

Litigation privilege is subject to clearly defined exceptions, not to a case-by-case balancing test. In the context of privileges, the exercise of balancing competing interests is associated with case-by-case privileges, not class privileges. The exceptions that apply to solicitor-client privilege are all applicable to litigation privilege. These include the exceptions relating to public safety, to the innocence of the accused and to criminal communications. They also include the exception recognized in Blank v. Canada (Minister of Justice), 2006 SCC 39 (Can Lii) for evidence of the claimant party’s abuse of process or similar blameworthy conduct. Other exceptions may be identified in the future, but they will always be based on narrow classes that apply in specific circumstances.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Palpable and Overriding errors

In Housen v. Nikolaisen (2002) 2 S.C.R. 235, at para. 25, the Supreme Court stated with regard to the standard to be applied on appeal of findings of fact, “palpable and overriding error” was the correct standard. The court stated as follows:

It is our view that the trial judge enjoys numerous advantages over appellate judges which bear on all
conclusions of fact, and even in the absence of these advantages, there are other compelling policy reasons
supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is
one , and only one, standard of review applicable to all factual conclusions made by the trial judge – that of
palpable and overriding error.

The palpable and overriding standard addresses both the nature of the factual error and its impact on the result. A palpable error is one that is obvious, plain to see. Examples of palpable factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically mean that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require a legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

The rule in Browne v. Dunn

The rule in Browne v. Dunn (the “Rule”) establishes that if counsel seeks to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the opportunity to address such evidence during cross-examination. The nature of the contradictory evidence must at least be put to the witness during cross-examination by the counsel who plans to lead it.

This Rule is one of fairness, aimed at preventing witnesses from being ambushed by not giving them an opportunity to state their position with respect to later evidence which contradicts them on an essential matter. The Rule’s application is not fixed, but lies within the sound discretion of the trial judge and depends on the circumstances of each case.

Whether the rule in Browne v. Dunn is offended by failure to cross-examine on a specific matter in a particular case cannot be determined in the abstract. Each case is different. The rule is flexible, not rigid. Reasonable people may differ about which side of the line a failure to cross-examine on a particular point falls. A trial judge should be accorded considerable deference on a decision about the Rule’s application.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Caveat Emptor and the Purchase and Sale of residential real estate in Ontario

The doctrine of caveat emptor (“let the buyer beware”) applies to residential real estate transactions in Ontario. The underlying rationale for the doctrine rests on a policy decision as to which party should bear the risk of any deficiencies in property purchased. In general, that risk is to be borne by the purchaser unless the circumstances fall within recognized exceptions. The buyer may otherwise protect him or herself by contractual terms.

The courts have recognized four exceptions to the rule of caveat emptor:

1. where the vendor fraudulently misrepresents or conceals;
2. where the vendor knows of a latent defect rendering the house unfit for habitation;
3. where the vendor is reckless as to the truth or falsity of the statements relating to the fitness of the house
for habitation; and
4. where the vendor has breached his or her duty to disclose a latent defect that renders the premises
dangerous.

The plaintiff must prove the following to establish a fraudulent misrepresentation was made by the vendor:

(a) the vendor made a representation of fact;
(b) the representation was false;
(c) the vendor knew the representation was false or made it recklessly; and
(d) the representation did, in fact, induce the plaintiff to enter into the agreement to his or her
prejudice.

The law distinguishes between latent and patent defects. A patent defect is one that would be apparent to a purchaser without further inquiry or inspection. A purchaser does not need the vendor to point out a patent defect because it is plain to the senses. A purchaser is expected to protect himself or herself from patent defects by ordinary inspection or inquiry. A purchaser can also protect him or herself by including contractual warranties that survive closing.

A latent defect is a defect not readily apparent to an ordinary purchaser during a routine inspection of the property. A vendor can be liable to a purchaser if he or she knows of a latent defect that renders the premises unfit for habitation. The onus rests on the purchaser to show that the vendor knew of the latent defect, concealed the latent defect or made representations with reckless disregard for the truth.

“Concealment” in the context of a latent defect connotes an act done with an intention to hide from view some defect of which the vendor is aware or wilfully blind. Silence about a known major latent defect is the equivalent of an intention to deceive. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your matter.

The Summary Hearing process under the Ontario Human Rights Code

The summary hearing process under the Ontario Human Rights Code (the “Code”) is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of the summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

The Ontario Human Rights Tribunal does not have the jurisdiction to address allegations of unfairness or of general harassment that is unrelated to the Code. Many experiences of unfairness, harassment that are not linked to the Code, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination and harassment that are linked to the prohibited grounds set out in the Code.

The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination, harassment or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any direct or circumstantial evidence , or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code. For an application to continue in the Tribunal’s process following a summary hearing , there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Defamation

A publication which tends to lower a person in the estimation of right thinking members of society or to expose a person to hatred, contempt or ridicule is defamatory. What is defamatory may be determined from the ordinary meaning of the published words or from the surrounding circumstances. A publication may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances known to the listener or reader which gives it a defamatory meaning by way of innuendo, different from that in which it ordinarily would be understood. In determining its meaning the court may take into consideration all the circumstances of the case including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require a legal advice, a lawyer should be consulted to advise on the specific circumstances of your matter.

Solicitor-Client Privilege and Inadvertent disclosure

Communications between a lawyer and his or her client are privileged where they involve the giving or seeking of legal advice and where the parties intend them to be confidential. The client, not the lawyer, holds the privilege and only he or she can waive it.

Where solicitor-client privilege has not been waived, the court may also consider whether privilege should yield in order, for example, to allow an accused to make full answer and defence. However, solicitor-client privilege is almost absolute, and may be set aside only in very rare circumstances.

Inadvertent disclosure does not necessarily mean that the privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:

^ The way in which the documents came to be released;
^ Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
^ The timing of the discovery of the disclosure;
^ The timing of the application;
^ The number and nature of the third parties who have become aware of the documents;
^ Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing
party; and
^ The impact on the fairness, both actual or perceived, of the processes of the court.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise regarding the specific circumstances of your matter.

The lawyer’s duty of Courtesy and Civility

It is common ground that the concept of “civility” ,as it applies to lawyers, is not easily defined. While the meaning of civility for lawyers may be difficult to articulate with specificity, its significance to the proper functioning of our judicial system is beyond doubt. It is important that everyone, including the courts, encourage civility both inside and outside the courtroom. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the Civil context. Lawyers are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. Unfair and demeaning comments by counsel in the course of submissions to the a court do not simply impact on the other counsel. Such conduct diminishes the public’s respect for the court and for the administration of justice and undermines the legitimacy of the results of the adjudication. The need for civility by lawyers is part of the public’s reasonable and legitimate expectations of a lawyer’s professionalism.

Accordingly, Civility is not merely aspirational for lawyers. It is a codified duty of professional conduct enshrined in the Conduct Rules and an essential pillar of the effective functioning of the administration of justice.

The concept of Civility captures many forms of unprofessional communications that go well beyond rudeness or lack of courtesy. There is an important distinction between impassioned, but reasoned, disagreements and uninformed, nasty personal tirades.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise regarding the specific circumstances of your case.

Confidential Informant Privilege

Confidential Informant Privilege is a class privilege. The rule is of fundamental importance to the workings of the criminal justice system. This privilege is of such importance that, once established, a court is not entitled to balance the benefit that enures from the privilege against countervailing considerations. The only exception to the rule is innocence at stake. No exception exists for the right to make full answer and defence.

Preservation of the near absolute nature of CI privilege has significant implications for the redaction process as well as for requests for further disclosure about the informant’s sources of knowledge or the nature of the information provided. It is virtually impossible for a court to know what details may reveal the identity of a Confidential Informant.

An absolute Confidential Informant privilege rule, subject only to the innocence at stake exception, is consistent with the protection the Canadian Charter of Rights and Freedoms accords to the right to a fair trial. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted regarding the specific circumstances of your case.

Interpreting Commercial Contracts in Ontario

When interpreting a commercial contract, the court aims to determine the intentions of the parties in accordance with the language used in the written document and presumes that the parties have intended what they have said. The court construes the contract as a whole , in a manner that gives meaning to all of its terms , and avoids an interpretation that would render one or more of its terms ineffective. In interpreting the contract, the court must have regard to the objective evidence of the “factual matrix” or context of the underlying negotiation of the contract, but not the subjective evidence of the intention of the parties. The court should interpret the contract so as to accord with sound commercial principles and good business sense, and avoid commercial absurdity. If the court finds that the contract is ambiguous, it may then resort to extrinsic evidence to clear up the ambiguity. Where a transaction involves the execution of several documents that form parts of a larger composition whole- like a complex commercial transaction – and each agreement is entered into on the faith of the others being executed, then assistance in the interpretation of one agreement may be drawn from the related agreements. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal assistance, a lawyer should be consulted to advise on the specific circumstances of your case.