Does solicitor's privilege have to give way to disclosure?

In Do v. Esmaili, supra, Mr. Justice Wilson considered an application by the plaintiff for an order that a representative of the corporation (I.C.B.C.) be examined pursuant to Rule 28. The corporation had conducted surveillance on the plaintiff and the plaintiff sought discovery of the videotapes as well as the identity of investigators. Asserting solicitor/client immunity, the corporation refused to disclose information. The application was dismissed. In his reasons, Mr. Justice Wilson said: “[11] Mr. Do relies on the notion that full and complete disclosure is the contemporary norm. He calls in aid a number of decisions of this court, said to import principles in authorities from the Province of Ontario. I think some caution must be exercised before resorting to Ontario procedure. One of the reasons for the principles found in those authorities appears to be that the Ontario rules and decisions applying them "... are based upon the philosophy of complete disclosure between the parties for the purposes of trial"[4]. In this jurisdiction the debate has gone the other way. In Hodgkinson v. Simms[5] the Chief Justice, for himself and Taggart J.A., wrote: While I have no hesitation associating myself with the fullest possible disclosure, it seems to me with respect that the cases cited are not authority for the proposition that privilege must give way to disclosure. In fact, the cases cited do not deal with solicitor's privilege at all. There are strong and valid reasons for privilege which should not lightly be diluted, and conflicting policies, even where they collide head-on, often coexist, with one subject to the other. While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege.” And again, at paragraph 16: “[16] It would be inconsistent, and illogical, to hold that the immunity is secure in document discovery but not secure in oral discovery. That is to say, what cannot be gained in document discovery may be obtained in oral examinations for discovery or an examination under Rule 28.”

In Daruwalla v. Shigeoka, supra, Mr. Justice Harvey had to consider a special case under Rule 33 for answers to issues re: examinations for discovery concerning surveillance details and other matters that should be disclosed. The two issues were: “1. In the circumstances of this case, should the defendant be examined before the plaintiff, or should the plaintiff be examined before the defendant? 2. If the defendant is examined before the plaintiff, must the defendant disclose the details of the surveillance films obtained of the plaintiff, and other details concerning the defendant’s investigations prior to the examination for discovery of the plaintiff.”