Supreme Court of Canada confirms that litigation privilege cannot be abrogated absent express statutory provision

10. January 2017 0

Litigation privilege cannot be abrogated absent express statutory provision; s. 337 of the Act Respecting the Distribution of Financial Products and Services does not provide such express provision.

Lizotte v. Aviva Insurance Co. of Canada[2016] S.C.J. No. 52, 2016 SCC 52, Supreme Court of Canada, November 25, 2016, B. McLachlin C.J. and R.S. Abella, T.A. Cromwell, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Cote and R. Brown JJ.

The Supreme Court of Canada dealt with litigation privilege in the context of s. 337 of the Act Respecting the Distribution of Financial Products and Services, CQLR c D-9.2.

The assistant syndic of the Chambre de l’assurance de dommages (the “syndic”) is a self‑regulatory organization established by the Act respecting the distribution of financial products and services responsible for overseeing the professional conduct of a number of representatives working in the insurance field including claims adjusters, damage insurance agents, and damage insurance brokers.  The syndic opened an inquiry with respect to an insurer’s claims adjuster.  In the course of the inquiry, the syndic sent the insurer a request for a complete copy of a claim file.  The insurer produced a number of documents but explained it had withheld some on the basis they were covered either by solicitor‑client privilege or by litigation privilege. The syndic applied for a declaratory judgment against the insurer in order to obtain the entire claim file relying on s. 337 of the Act which creates an obligation to produce “any…document” concerning the activities of a representative whose professional conduct is being investigated.

The Supreme Court of Canada upheld the decisions of the courts below which held that litigation privilege could not be abrogated absent express statutory provision.

This case was digested by Cameron B. Elder and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at celder@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.