Is it an established exception to use of privileged correspondence to prove confirmation in response to a limitations defence?

Newfoundland and Labrador, Canada


The following excerpt is from Meyers v. Dunphy, 2007 NLCA 1 (CanLII):

Neither party mentioned Berry v. Cypost Corp., supra, in which Burnyeat J., in his words, “classif[ied] the continuing exceptions”, and “set out some of the decisions which have established those exceptions”. It is the one case I have encountered which specifically asserts that use of otherwise privileged correspondence to prove confirmation in response to a limitations defence is an “established exception”. However, that assertion is also obiter, as the communications in issue were admitted to show that a party to them had acknowledged lying, and credibility was critical to the case. Clearly, that is a circumstance in which use of the privilege to exclude the evidence, would be an abuse of the privilege. The case was not, in any manner, related to confirmation in response to a limitations defence.

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