November 10, 2023

By Brian Babcock

In litigation, issues as to the production of documents are common.

Parties often want to maintain the confidentiality of records prepared in confidence- employment records, medical records, internal investigations.

THE ISSUE

How far will courts go in protecting confidentiality?

This confuses the concepts of confidentiality and privilege. Privilege is a very limited concept. The only documents presumed to be privileged are lawyer and client communications and certain documents prepared for use in litigation.

Otherwise, the high value given to disclosure will require the production of many confidential documents.

THE CASE

A recent case, Gowing Contractors Ltd. v. Walsh Construction Co. Canada, caught our attention because it says it well: “Concerning confidentiality, confidential information in relevant documents can be withheld only if the information is found to be significantly damaging or prejudicial to the producing party or others. Mere embarrassment or reputational damage does not meet this test”.

This test must be applied on a case-by-case basis, balancing the interests as previously discussed, using the “Wigmore rules”. An ad hoc claim of privilege may be permitted where:

1. The communication at issue originated in confidence that it would not be disclosed;
2. The element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;
3. The relation must be one which, in the opinion of the community, ought to be sedulously fostered and
4. The interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.

The Gowing case highlights another aspect of confidentiality. The obligation to produce is triggered by a party having documents in their power, possession or control. In the Gowing case,  interview transcripts in the possession of an investigator were NOT in the control of the party because it had hired the investigator on the basis that the raw materials would be confidential in the hands of the investigator. Since the investigator never prepared a report, the investigation materials were not ordered to be produced.

TAKEAWAYS

• Confidentiality is not the same as privilege.
• There is no general protection against the production of confidential documents, but the Wigmore rules apply.
• Other limitations on production may also apply.
• These are factual issues but involve subtle legal precedents best interpreted by a lawyer with experience in the area.
• Be careful what you put in writing. Sometimes, a conversation is all you need to have.
• Clear communication between lawyer and client is crucial.

HOW WEILERS  LLP CAN HELP YOU

The litigation team at Weilers LLP has significant experience in arguing issues of privilege in Thunder Bay and  Northwestern Ontario and has the skills that you may require. Our experience includes construction litigation, as well as other areas of law. If you think you might need our help, please contact us to discuss whether we are the right lawyers for you.