Canada: Legal Professional Privilege and Implied Undertaking

Legal Professional Privilege

Does your jurisdiction recognise or hold a concept of legal professional privilege? What is it called?

Yes, in Canada there are two varieties of legal professional privilege: legal advice privilege (also known as solicitor-client privilege) and litigation privilege.

What is the basis at law of legal professional privilege in your jurisdiction?

Legal professional privilege exists under both the common law and statute in all Canadian Provincial jurisdictions and in Canada’s one Federal jurisdiction.

How does legal professional privilege operate in your jurisdiction in the context of:

…lawyers qualified in your jurisdiction?

Legal advice privilege applies to all confidential communications between a lawyer and a client that are made for the predominant purpose of obtaining legal advice.

Litigation privilege applies to communications between a lawyer and a client or a third party (e.g. expert witnesses) that are made for the predominant purpose of preparing for anticipated or ongoing litigation.

Legal professional privilege extends to communications between a client and an agent authorized to communicate on behalf of a lawyer (e.g. law clerks or paralegals).

…in-house lawyers?

Legal professional privilege attaches to communications between in-house lawyers and their employers where those lawyers are acting in their capacity as legal advisors. Non-legal advice, such as business advice, from an in-house lawyer to their employer is not privileged. In-house lawyers are recommended to be cautious in their communications and clearly delineate legal advice from non-legal advice.

…patent and trade mark attorneys?

Under s 16.1 of the Patent Act and s 51.13 of the Trademarks Act, communications between a registered patent agent or trademark agent and a client made for the purpose of seeking or giving advice with respect to any matter relating to the protection of an invention or trademark, respectively, is subject to privilege in the same way, and to the same extent, as a communication made for the predominant purpose of a lawyer providing legal advice to a client. This privilege extends to foreign patent agents and trademark agents where the agent-client communication is privileged under the law of the foreign country.

…foreign qualified lawyers?

Legal professional privilege extends to communications between a foreign lawyer and their client so long as it is for the dominant purpose of obtaining legal advice. This includes instances where foreign legal advice is needed to assist in domestic proceedings.

What materials or work product does legal professional privilege apply to in your jurisdiction?

Communications can be privileged irrespective of the medium through which they are conveyed. For example, oral communications, written communications, faxes, voicemails, emails, and other forms of digital information storage may be protected by legal professional privilege. Such communications can include notes and drafts, instructions and briefs, opinions, memoranda, meeting minutes, or other documents that relate to information required to advise a client or to conduct litigation on a client’s behalf.

Similarly, any document prepared with a view to it being used as a communication which would attract privilege, even if it was not in fact so used, can be subject to legal professional privilege.

What does legal professional privilege not cover in your jurisdiction?

Communications between a lawyer and a client for a criminal or fraudulent purpose are not protected by legal professional privilege. This includes communications made with a view to obtaining legal advice to facilitate the commission of a crime. Additionally, legal professional privilege cannot be invoked to conceal evidence of wrongdoing.

How is legal professional privilege waived in your jurisdiction, who can waive it, and what are the consequences of waiver?

Only the client can waive legal professional privilege. If the lawyer has the authority or consent of the client, they can waive legal professional privilege on behalf of the client.

Legal professional privilege can be waived expressly by disclosing protected material to a third party. It can also be waived impliedly, even if the party did not intend to do so, where the party acts in a way that is inconsistent with a claim of confidentiality, or a party seeks to rely on the substance of advice in support of its case.

Once legal professional privilege is waived, the party’s common law rights are extinguished and there will be no recourse to any injunctions to restrain disclosure. There is considerable doubt as to whether a court has discretion to restore a privilege that has been waived.

Implied Undertaking

Does your jurisdiction recognise or hold a concept of the implied undertaking?

Yes, Canada recognises the concept of implied undertaking in the form of the implied undertaking rule (sometimes referred to as the deemed undertaking rule). Documents and information obtained through the discovery phase of legal proceedings cannot be used for any purpose collateral or ulterior to the resolution of the issues of those proceedings.

What is the basis at law of the implied undertaking in your jurisdiction?

The implied undertaking rule exists in all Canadian jurisdictions under the common law, with the Supreme Court of Canada’s decision in Juman v Doucette, 2008 SCC 8 being the leading authority on the scope of this rule.

The implied undertaking rule also exists under statute in some Canadian Provincial jurisdictions. For instance, rule 5.33 of the Alberta Rules of Court legislates the implied undertaking rule.

How does the implied undertaking operate in your jurisdiction, including its scope (and any exceptions or limitations)?

The implied undertaking rule applies to all documents and information received in the course of examination for discoveries. This can include documents from a party’s affidavit of documents, documents produced in response to undertakings, answers provided during an examination for discovery, and answers provided in response to undertakings.

The implied undertaking rule does not apply to material used or read in open court. Additionally, the implied undertaking rule does not apply to materials filed with the court. However, parties can prevent their documents and information from being publicly disclosed by obtaining protective orders from the court. These protective orders designate certain documents and information as confidential and will prevent them from being disclosed to the public. They can also restrict access to certain documents and information to counsel for each party.

The party receiving the documents or information and their lawyers are bound by the implied undertaking rule. In addition, third parties receiving the information (e.g. expert witnesses) may be bound by the implied undertaking rule. However, case law regarding that third parties are bound by the implied undertaking rule is tenuous (see Seedlings Life Science Ventures, LLC v Pfizer Canada Inc, 2018 FC 956 at para 31), so from a risk point of view a party needs to consider whether to rely solely on the assumption that they will be covered by this rule.

How is someone released from the implied undertaking in your jurisdiction?

The implied undertaking rule is an obligation owed to the court, so the parties must apply to the court to be relieved of it. Leave of the court is required and is only granted in special circumstances where there is a legitimate public interest in the proposed wider use of the documents or information.

How can the implied undertaking be breached in your jurisdiction and what are the consequences of such breach? What steps should you take if a breach comes to your attention?

The implied undertaking rule is breached when parties make use of the documents or information for purposes collateral or ulterior to the resolution of the issues in the proceedings. It is a breach of the implied undertaking rule to use the documents or information for unrelated commercial purposes. Likewise, it is also a breach of the rule to disclose the documents or information to other persons contemplating related proceedings, including proceedings in other jurisdictions.

The courts will determine when the implied undertaking rule applies and when it is breached. Breach of the implied undertaking rule constitutes contempt of court regardless of whether the breach was intentional. There can also be costs consequences for a breach of the implied undertaking rule, as well as the possibility of a stay of proceedings. Not knowing that implied undertaking rule applies to a document or information is not a defence to allegations of a breach of this rule. Third parties to whom the documents or information were disclosed during the proceedings can also be subject to sanction by the courts if they are found to have breached the implied undertaking rule.