Yes

N/A

There is no formal distinction made between civil and criminal proceedings specifically. However, differences may arise depending on the nature of advice or information being exchanged and subject to ACP as between criminal and civil matters (e.g. the “furtherance of crime/fraud” exception to ACP).

No, government authorities cannot require disclosure of attorney-client communications and legal work product. Disclosure of this information may only be made by an order of the Court and in accordance with established class and/or case-by-case privilege exceptions. 

Courts in Manitoba have tended toward a modified Upjohn approach. That is, the operative analysis in determining whether privilege will extend to an employee of a company is whether the investigation or communication was “related to the rendition of legal services” (see Gower v Tolko Manitoba Inc., 2011 MBCA 11). 

In R v McCarthy Tetrault, [1992] OJ No 180, 12 CPC (3d) 42 (ONCA), the Court wrote at paragraph 6: 

[i]n considering solicitor-client privilege where the client is a corporation, Canadian courts have extended a broad protection to communications of the corporation's employees, regardless of the level occupied by the employee in the corporate hierarchy, and have accepted that any employee can be engaged by the corporation to pass on information to solicitors for the purpose of receiving legal advice…

There is no authority at this point in Manitoba, however, in our opinion, there is no higher burden.

N/A

N/A

Yes

There is nothing specifically particular about Manitoba’s articulation of the common interest doctrine; it is founded on Lord Denning’s leading Buttes (1980) decision, which has been relied upon by Manitoba courts as recently as 2017 (see Brooks Equipment Ltd. v La Salle Credit Union Ltd., 2017 MBQB 73). 

That is, common interest privilege allows parties with common interests (often referred to as “selfsame” interest) to share certain privileged information without waiving their privilege. 

In Brooks, the court relied upon extra-provincial jurisprudence to indicate that “common interest privilege allow[s] parties with a common interest in the same anticipated or current litigation to share information protected by litigation privilege without waiving that privilege” (para 36) and that “for common interest privilege to apply, the persons sharing a common interest do not have to be co-parties. It is enough that they ‘anticipate litigation against a common adversary on the same issue or issues…’” (para 36).
 

No

There have been no reported decisions in Manitoba that have considered third-party litigation funding. However, the courts in Ontario, which are highly persuasive on those in Manitoba, permit litigation funding subject to certain considerations. Specifically, a third party funding arrangement will be disqualified if it is deemed to be “champertous”. In McIntyre Estate v Ontario (Attorney General) (2002), 61 O.R. (3d) 257 (ONCA) at para. 26, the court wrote:

[m]aintenance is directed against those who, for an improper motive, often described as wanton or officious intermeddling, become involved with disputes (litigation) of others in which the maintainer has no interest whatsoever. Champerty is an egregious form of maintenance in which there is the added element that the maintainer shares in the profits of the litigation.

With respect to litigation funding, in Ontario’s Schenk v. Valeant Pharmaceuticals International Inc., 2015 ONSC 3215 at para 8, the court held that litigation funding was not champertous per se, and there was “no reason why such funding would be inappropriate in the field of commercial litigation”. However, a funding arrangement could be champertous if, for example, the funder exerted unreasonable control over the litigation or charged excessive fees (see Houle v St. Jude Medical Inc., 2018 ONSC 6352). Ultimately, the test whether to approve a third-party funding agreement is that:

the agreement should not be champertous or illegal and it must be a fair and reasonable agreement that facilitates access to justice while protecting the interests of the defendants. (Houle at para 27)

Again, as stated, third-party litigation funding has not been considered in Manitoba. However, in our opinion, it is likely that the courts would follow Ontario’s lead and allow third-party funding subject to the same or similar considerations.

No, nor has it been directly considered by the courts in Ontario. However, in our opinion, it is likely that once considered, a court would find that both ACP and litigation privilege would protect documents and information shared by a plaintiff and its counsel with a litigation funder.

Yes

The exception exists only at common law. See:

Descôteaux v. Mierzwinski (1982), [1982] 1 SCR 860 (SCC);

Smith v. Jones (1999), 132 CCC (3d) 225 (SCC); 

R. v. Shirose (1999), 133 CCC (3d) 257 (SCC);

Rule 30 of the Manitoba Court of Queen’s Bench Rules allows a party to claim privilege over documents prepared in anticipation of litigation. The scope of litigation privilege, however, is not defined by statute and finds its place in the common law/jurisprudence.

Summarized as the “dominant purpose test” and articulated in Man-Shield Construction Inc. v Renaissance Station Inc., 2014 MBQB 101 as follows:

A document will attract litigation privilege if the dominant purpose for which the document was prepared was for use in respect of litigation. Assisting in litigation must be the dominant purpose and not only one possible purpose. It is not sufficient if the litigation is but one of several purposes. (para 17)

Privilege arises from the nature of, and the circumstances surrounding, the communications in question… To establish litigation privilege, the party asserting it will need to show evidence of the circumstances in which the documents were created, such as who created them, when they were created, who authorized them, and their uses… (para 16)
 

No, the accountant-client privilege does not exist in Canadian law. See Sherman v Drabinsky, [1997] OJ No 2734 (Ont Gen Div) at para 4 and Redhead Equipment Ltd. v Canada (Attorney General), 2016 SKCA 115 at para 44.

Yes

Yes