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Leave to Appeal Granted: Court to Review of Privilege Claim Process in Commercial List Case

Whelton Hiutin partner Richard Macklin, and articling student Wei Jiang, recently obtained Leave to Appeal, on behalf of a client, on a surprisingly unresolved issue in the Ontario case law.

Rule 30.04(6) of the Rules of Civil Procedure allows a party to seek to have a Judge or Master inspect documents that the other side asserts are privileged. But the ability to get the Judge or Master to review the documents is in the Judge or Master’s discretion (“may inspect”). What happens if there is no evidence to support the privilege asserted, but the Judge or Master declines to review the purportedly privileged documents and dismisses the motion to produce them?

In at least one Province, when one party knows the contents of the purportedly privileged documents, and the other doesn’t, and there is no other evidence that sheds light on the assertion of privilege, the Judge or Master must review the documents (“may” has been interpreted as “shall”-see Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District, 2013 BCSC 1893, at para 33).

Should the law in Ontario be the same? Stay tuned.