Litigation Privilege and Justice Robert Sharpe

The litigation Bar in Ontario received a major shock when Justice Janet Wilson decided, in the January 2014 trial judgment in Moore v. Getahun, that communications between counsel and expert witnesses engaged in the preparation of an expert report ought not to occur. The prevailing understanding had been that communication with an expert witness was needed to ensure accuracy of the facts, to explain the law and to promote clarity in the presentation of the evidence. It was therefore no surprise that the parties to the resulting appeal, and legal organizations on all sides of the Bar that participated as interveners, urged the Court of Appeal to reject Justice Wilson’s approach.

The January 29, 2015, decision of the Court, 2015 ONCA 55, was authored by the outstanding jurist Justice Robert Sharpe. The reasons display the customary thoughtfulness and clarity that Ontario lawyers have come to expect from Justice Sharpe’s writings. I don’t intend to comment on the decision in detail. It has already received much attention in the legal press. There is, however, an interesting side note that’s worth mentioning.

In 1984, then a Professor at the University of Toronto Law School, Justice Sharpe presented a paper at the Law Society Special Lectures entitled “Claiming Privilege in the Litigation Process,” Special Lectures of the Law Society of Upper Canada (Don Mills, Ont.: Richard De Boo Publishers, 1984). In it, Justice Sharpe examined the differences between solicitor and client and litigation privilege, explained in detail the policy basis for claims of litigation privilege and discussed the practical implications of the privilege in the conduct of litigation. The paper was influential and was later referred to and cited with approval by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319. Here are some excerpts:

It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.

Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client)…

The adversary system depends upon careful and thorough investigation and preparation by the parties through their counsel. The adversarial advocate cannot prepare without the protection afforded by a zone of privacy. Discovery and privilege must strike a delicate balance. Too little disclosure impairs orderly preparation. Counsel cannot come to trial prepared without adequate information about the case the opposing side will present. On the other hand, total disclosure would be demoralizing and would impair orderly preparation. Thorough investigation and careful development of strategy would be discouraged if every thought and observation had to be disclosed. The work product test focuses on the need to protect counsel’s observations, thoughts and opinions as the core policy of the protection from disclosure of preparatory work.

Justice Sharpe was too modest to cite his own paper when authoring the reasons in Moore v. Getahun. However, in the section of the decision dealing with litigation privilege, Justice Sharpe returned once again to the themes of thorough preparation and the need for a zone of privacy that he had expressed 30 years earlier, and had been taken up by the Supreme Court:

[67] I now turn to the issue of the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party.

[68] The starting point for analysis is that such consultations attract the protection of litigation privilege. Litigation privilege protects communications with a third party where the dominant purpose of the communication is to prepare for litigation. As explained by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 27, the object of litigation privilege “is to ensure the efficacy of the adversarial process”, and “to achieve this purpose, parties to litigation… must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.” These concerns are important in the context of the preparation of expert witnesses and their reports.

[69] In Blank, the court noted, at para. 34, that litigation privilege creates “a ‘zone of privacy’ in relation to pending or apprehended litigation.” The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports.

[70] Pursuant to rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. Under the protection of litigation privilege, the same holds for the draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness.

[71] Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and would inhibit careful preparation. Such a rule would discourage the participants from reducing preliminary or tentative views to writing, a necessary step in the development of a sound and thorough opinion. Compelling production of all drafts, good and bad, would discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalanced reports. Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with the orderly preparation of a party’s case and would run the risk of needlessly prolonging proceedings.

It might be thought that with the parties and legal organizations agreeing on the point, the writing of reasons for judgment would be a simple exercise. Not so. The reasons of Justice Sharpe in Moore v. Getahun reflect the extraordinarily high standards of the Court of Appeal, for which Ontarians can be justifiably proud.