Date01 February 2007
Published date01 February 2007
Legal professional privilege—Canada
Specialist works about legal professional privilege have been published in most
major common law jurisdictions in the past few years (see, for example, R. W.
Hubbard, S. Magotiaux and S. M. Duncan, The Law of Privilege in Canada (Canada Law
Book: 2006)). The judicial activity which has prompted these publications shows
no sign of abating. Within a very short space of time, the Supreme Court of Canada
has heard three cases concerning either solicitor–client privilege (SCP) (a.k.a. legal
advice privilege) or litigation privilege (LP). Celanese Canada Inc. vMurray Demolition
Corp. 2006 SCC 36 involved a clash between SCP and the right to select counsel of
one’s choice. SCP emerged the victor, demonstrating the high importance that the
Supreme Court attaches to solicitor–client confidences. The context was an Anton
Piller order against Canadian Bearings in favour of Celanese. An Anton Piller order
(in England renamed a ‘search order’ by Lord Woolf) authorises the plaintiff in
prospective litigation to conduct a surprise search of an opponent’s premises to
preserve evidence that is at risk of destruction or concealment. The searching
party is not entitled to see privileged documents and steps should be taken to
prevent this. In this case, because the order which Celanese placed before the
authorising judge was inadequately drafted and then carelessly executed,
electronic documents subject to SCP were inadvertently copied on to a CD-Rom.
The problem was compounded when the solicitors supervising the search passed a
copy of the CD-Rom to lawyers acting for Celanese. These lawyers failed to appre-
ciate that the purpose of an Anton Piller order is to preserve and not to provide
evidence. At least a dozen privileged emails were reviewed in full. Canadian
Bearings applied to have all the lawyers who had had access to the privileged
material disqualified from continuing to act for Celanese. This application met
with no success in the lower courts.
Disagreeing with the Ontario Court of Appeal, the Supreme Court unanimously
held that once Canadian Bearings had shown that privileged material had found
its way into the hands of the lawyers for Celanese (a fact admitted by Celanese) and

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