Workplace Investigations

Use of Privileged Document at Trial

The Rules of Civil Procedure in Ontario allow the party claiming privilege, such as solicitor client or litigation privilege, to nonetheless use the document at trial. There are two ways to do so. The first is to abandon the privilege prior to trial. The document may then be used as either party may desire.

The second use does not require a waiver of the privilege. In this context, the party claiming privilege may still use the document in cross-examination to attack the credibility of the witness.

There is always a third alternative which is allowed as circumstances may permit with the leave of the trial judge. 1

Accordingly if a report, otherwise privileged for any reason, is to be used for substantive affirmative evidence at trial, the privilege must be waived by the 90 day deadline, apart from essential exception of cross-examination for impeachment purposes.  However, when used to cross-examine, the report must also be relevant to the credibility of the witness,2 to which the usual test of admissibility will apply. 3

The later decision of Howden J. in August of 2012 took issue with the defence`s conduct in not updating its affidavit of documents to reveal a privileged surveillance after the creation of the initial affidavit and after discovery in which the question of surveillance put to the witness was answered, as found by the trial judge, in the negative, an answer which was then true.4

The defence failed to amend this answer and its affidavit of documents, points on which the trial judge noted, to refuse the admissibility of the privileged materials event to challenge credibility. The decision is reported on this point on the costs assessment, although it does refer to the decision at trial as well.

In a Court of Appeal decision, defence counsel had advised the opposing party, prior to trial, of the surveillance and had also provided a summary of its contents.5  The three videos were not actually provided to the plaintiff. This factor was not seen as notable in the decision, although the suggestion in Beland would belie that conclusion. The Court of Appeal in its reasons referenced the issue of production of the surveillance videos in this fashion:

In this case, because the videos were not produced to plaintiffs’ counsel prior to trial and Fargione did not deliver a notice of abandonment of her privilege claim concerning the videos in accordance with rule 30.09, the videos were not admissible as substantive evidence absent leave of the trial judge and could be used at trial only for impeachment purposes.

The process in Nova Scotia is similar as noted in Ontario. It does not have the same rule but applies the same concept.6 This, the court found, is an exception to the spirit of full disclosure which allows trial by ambush:

The rule and its interpretation in  Newfoundland7 is similar to that of Ontario, as is that of Alberta 8