Say it ain’t so: Simply stating document is ‘privileged’ doesn’t mean it is

August 27, 2017 0 COMMENTS

by Hannah Roskey and Katie Clayton

Maintaining the privilege of a document is a fundamental aspect of any litigation. The Canadian legal system is premised on the search for truth, which, by default, requires parties to disclose relevant documents to one another in the course of litigation. This is the case in traditional civil actions and generally so for other similar adjudicative processes.

read more…

Investigations by lawyers: Privileged, or not privileged, that is the question

January 10, 2016 0 COMMENTS

by Monique Orieux

In Canada, an employer may retain a lawyer to conduct a workplace investigation, particularly where the issue under investigation is of a sensitive nature. One reason for doing so is to attempt to keep the investigator’s notes, supporting documents, and final report from being disclosed to a third party as privileged. However, privilege is not a guarantee.

In two preliminary arbitration decisions from last year—one from Ontario and one from British Columbia—employers were ordered to disclose the investigating lawyer’s report and supporting documents to the union. These decisions illustrate the importance of taking care to preserve solicitor-client and/or litigation privilege at the time a lawyer-investigator is retained, during the investigation process, and thereafter. read more…