Page 9 - CCCA 259155 Magazine_Winter 2016

{ PRACTICE MANAGEMENT }

Within the context of a limited waiver be asserted over the documents. Companies Note: The views expressed in this article are
of privilege, the issue becomes the extent cannot afford to be complacent about how those of the author and not those of his em-
to which the third party receiving the they release privileged information. ployer, the Department of Justice.
privileged information can waive privi- The principle of limited waiver of privi-
lege. Where there is a common interest lege offers a solution that should be consid-
privilege, the third party may assert privi- ered even if the case law is still in its infancy Alexander Gay is General Counsel at the Depart-
lege without having to confer with the in Canada. The inclusion of a statement in ment of Justice. He maintains a broad civil litigation
practice, with an emphasis on commercial and trade
company that provided the privileged the email or cover letter advising counsel disputes. He is also a part-time professor at the
document. Within the context of the law that the enclosed documents are privileged University of Ottawa (Faculty of Law) and the author
of confdence, the third party cannot as- and that they are provided in confdence of the Annotated Arbitration Act of Ontario, 1991
sert a privilege over the document if the opens the door to additional arguments and countless articles. Mr. Gay is a member of the
company that provided the information that can act as a backstop in the event that Law Society of Alberta, the Law Society of British
decides to no longer assert the privilege. the common interest privilege fails. ❚ Columbia and the Law Society of Upper Canada.
all common law jurisdictions. The United “ Companies cannot aford to
In other words, the third party may not
assert a privilege in its own right.
Of course, the problem with sharing
privileged documents in confdence is
that the case law in support of this legal
be complacent about how they
position is sparse in Canada. In addition,
the concept of sharing privileged infor-
release privileged information.
mation in confdence and for limited pur-
poses is not one that has been accepted in
States treats the sharing of information ”
with a third party as a complete waiver of
privilege and rejects the notion that dis-
closure by a company can be for limited
purposes. This becomes an important
consideration for companies with a North
American presence.
The days where common interest privi-
lege could be claimed to protect any and all
information exchanged between companies,
even where there is no actual or impend-
ing litigation, are over. The privilege is not
a stand-alone privilege. It requires that a so-
licitor-client privilege or litigation privilege

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