What is the test for maintaining a party’s privilege over disclosure of confidential documents?
Ontario, Canada
The following excerpt is from St. Elizabeth Society v. Hamilton-Wentworth (Regional Municipality), 2004 CanLII 34361 (ON SC):
Relevant factors to consider in the exercise of the court’s discretion include 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 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 and perceived, of the processes of the court: Airst v. Airst, supra at 660.
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