In what circumstances will the court require that a document be submitted so that the contents of the document can be reviewed by the court to determine whether it is privileged?

Saskatchewan, Canada


The following excerpt is from HMW-Bennett & Wright Contractors Ltd. et al. v. BWV Investments Ltd. et al., 1992 CanLII 7882 (SK QB):

The applicants argue that it is usual for the court to require that a document be submitted so that its contents can be reviewed by the court to determine whether it is privileged as claimed. This may be so if the court is given some reason to question whether a particular document is in fact properly expected from production by the privilege claimed. No such reason was provided in the present application. Neither side filled any affidavit evidence. Under the former practice an affidavit as to documents was required. Where the affidavit set out facts (described the basis for privilege) which on the face of it disclosed privilege, the claim of privilege was accepted as conclusive until the opposite party showed grounds for going behind the affidavit and examining the documents. See Vickery v. C.P.R., 1921 CanLII 196 (SK QB), [1921] 2 W.W.R. 517. There is no reason to treat the claim for privilege made in a statement as to documents any differently. I reject the request to go behind the statement and examine the documents themselves, there being no grounds for doing so.

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