Recent Supreme Court of Canada decision settles certain points about litigation privilege

A recent decision by the Supreme Court of Canada in Blank v. Canada 2006 SCC 30 settles certain points regarding litigation privilege, Ted Bock, partner, Aikins, MacAulay & Thorvaldson LLP, told attendees during at seminar the Canadian Independent Adjusters Associations general meeting and conference in Winnipeg, MB.
Sheldon Blank was the director of Gateway Industries, a Winnipeg manufacturer, when he was charged various federal environmental regulatory offences surrounding polluting the Red River, in addition to reporting requirements. All counts against him were quashed and/or stayed, however not before lengthy and expensive litigation resulted in the failure of the company, Bock noted.
Blank proceeded to sue the federal government alleging it had abused prosecutorial powers and attempted to obtain documents prepared by the government against him, which had been protected by litigation privilege in the original trial. The initial trial had terminated, but the question became whether the privilege carried over to new civil proceedings after the termination of the criminal proceedings.
The Court ruled that Blank should have access to the documents noting the litigation period ends upon the termination of the litigation that gave rise to the privilege subject to a claim of privilege if it involves the same or related parties and the same or related source, Bock said. He went on to mention the Court endorsed the dominant purpose test in its findings and that litigation privilege applies to all litigants whether or not they have counsel.