Lex Mundi Global Attorney-Client Privilege Guide |
|
Canada, Alberta |
|
|
(Canada)
Firm
Blake, Cassels & Graydon LLP
Contributors
David Tupper |
|
| Is the ACP recognized in your jurisdiction? | Yes |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | There is no distinction in applying ACP in civil and criminal proceedings. Government bodies can make demands for disclosure of privileged documents, but those documents cannot be produced unless the relevant client waives the privilege. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | The corporation itself is considered the client. As such, the privilege belongs to the corporation, regardless of who was involved in the privileged communications. Employees who provide information are often provided an “Upjohn Warning” which informs them that the corporation can waive privilege, as the client, over any information they provide. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | The in-house designation of a lawyer does not affect the creation or character of privilege. However, business advice in house counsel provides, as opposed to legal advice, is not covered by privilege. There may therefore be an added burden in proving the communications in question pertained to legal, rather than non-legal business, advice. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | Common interest privilege applies when privileged information is confidentially shared among parties who share a common goal or who are seeking a common outcome. When there is such a common interest established, legal opinions can be shared without loss or waiver of privilege. Common interest is sufficient to invoke common interest privilege when parties work together against a common adversary, jointly seek the successful completion of a commercial transaction, or when the parties share a fiduciary or similar relationship. |
| Must a common interest agreement be in writing? | No, although it can serve to provide important evidence of the intention to preserve privilege. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Yes |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Documents and information shared by a plaintiff and its counsel with a litigation funder are privileged. However, the funding agreements themselves are not privileged. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Smith v Jones, [1999] 1 SCR 455 states that solicitor-client privilege does not cover communications which disclose an imminent risk of serious physical harm to an identifiable person or group. R v Campbell, [1999] 1 SCR 565 states that solicitor-client privilege does not cover communications that are criminal or made with a view to obtaining legal advice to facilitate the commission of a crime. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Litigation privilege exists in Canada but exists as a common law principle that is not codified. |
| What are the elements of the protection in your jurisdiction? | Litigation privilege protects documents and communications between a lawyer, client, or a third party created for the dominant purpose of preparing for litigation. |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | There is no automatic mediation privilege separate from settlement privilege. However, parties can contract for mediation confidentiality, through which they can agree to keep elements of mediation confidential, even above what would be protected by settlement privilege. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, settlement privilege protects statements made during the course of settlement. |
Lex Mundi Global Attorney-Client Privilege Guide
Canada, Alberta
(Canada) Firm Blake, Cassels & Graydon LLPContributors David Tupper
Updated 18 Mar 2020Yes
N/A
There is no distinction in applying ACP in civil and criminal proceedings. Government bodies can make demands for disclosure of privileged documents, but those documents cannot be produced unless the relevant client waives the privilege.
The corporation itself is considered the client. As such, the privilege belongs to the corporation, regardless of who was involved in the privileged communications. Employees who provide information are often provided an “Upjohn Warning” which informs them that the corporation can waive privilege, as the client, over any information they provide.
The in-house designation of a lawyer does not affect the creation or character of privilege. However, business advice in house counsel provides, as opposed to legal advice, is not covered by privilege. There may therefore be an added burden in proving the communications in question pertained to legal, rather than non-legal business, advice.
N/A
N/A
Yes
Common interest privilege applies when privileged information is confidentially shared among parties who share a common goal or who are seeking a common outcome. When there is such a common interest established, legal opinions can be shared without loss or waiver of privilege. Common interest is sufficient to invoke common interest privilege when parties work together against a common adversary, jointly seek the successful completion of a commercial transaction, or when the parties share a fiduciary or similar relationship.
No, although it can serve to provide important evidence of the intention to preserve privilege.
Yes
Documents and information shared by a plaintiff and its counsel with a litigation funder are privileged. However, the funding agreements themselves are not privileged.
Yes
Smith v Jones, [1999] 1 SCR 455 states that solicitor-client privilege does not cover communications which disclose an imminent risk of serious physical harm to an identifiable person or group. R v Campbell, [1999] 1 SCR 565 states that solicitor-client privilege does not cover communications that are criminal or made with a view to obtaining legal advice to facilitate the commission of a crime.
Litigation privilege exists in Canada but exists as a common law principle that is not codified.
Litigation privilege protects documents and communications between a lawyer, client, or a third party created for the dominant purpose of preparing for litigation.
No
There is no automatic mediation privilege separate from settlement privilege. However, parties can contract for mediation confidentiality, through which they can agree to keep elements of mediation confidential, even above what would be protected by settlement privilege.
Yes, settlement privilege protects statements made during the course of settlement.