In what circumstances will litigation privilege be asserted against a party who refuses to produce the document?

Ontario, Canada


The following excerpt is from Sky Solar (Canada) Ltd. v Economical Mutual Insurance Company, 2015 ONSC 4714 (CanLII):

In Kennedy v. McKenzie, Ducharme J. at para. 23 held that the onus of establishing the factual prerequisites of the claim of litigation privilege over a document rests on the party that seeks to claim privilege. Further, in order to discharge this preliminary onus, the party resisting production is not required to give particulars that would destroy the benefit of any privilege which might properly attach to the documents. However, Ducharme J. observed that in order for a proper determination to be made, they must provide a sufficient description of the documents, the circumstances of their creation and the dominant purpose. He held that once that once this is done, the onus shifts to the party seeking production to justify production on the basis of one of the reasons set out in paras. 42 to 46 of his decision.

Other Questions


Can a party who fails to assert privilege over a document be served with a supplementary affidavit of documents in which the privilege is properly claimed? (Ontario, Canada)
What is the test for establishing that a party asserting privilege to create a document that was intended to be used as evidence for litigation? (Ontario, Canada)
Does litigation privilege end when the litigation ends? (Ontario, Canada)
Is a litigation guardian required to approve a partial settlement that includes payment of 15% plus party and party costs to solicitors? (Ontario, Canada)
If a successful party accepts an offer to settle, can the successful party be ordered to pay all or part of the unsuccessful party’s costs? (Ontario, Canada)
What is implied waiver of privilege where the holder of privilege takes some action or position inconsistent with the maintenance of privilege? (Ontario, Canada)
What is the legal test for privilege over privileged documents? (Ontario, Canada)
In what circumstances have costs been denied or substantially reduced because of the unsuccessful party's financial circumstances? (Ontario, Canada)
What are the implications of a party refusing to produce a proper valuation for an asset? (Ontario, Canada)
Is a crown attorney acting for the applicant in a litigation between parties not providing a service to the opposing party? (Ontario, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.