Though this case deals with the general anti- avoidance rule, which raises peculiar issues, Justice Hogan gives a fairly broad review of principles that apply to decide which questions you can ask and which documents you can get. For example:
“[33] As correctly pointed out by the Appellant’s counsel, discovery serves a much broader purpose than eliciting evidence that is admissible at trial. For example, the discovery process allows the parties to gauge the weaknesses of their opponent’s case. This promotes the making and/or consideration of settlement offers, an approach that should be welcomed in all cases.
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[35] … Much of what is discovered may ultimately be viewed as altogether irrelevant or inadmissible. However, this is a determination to be made by the trial judge acting as the gatekeeper of the evidence allowed to form part of the trial record.
B. Refused Questions
[36]
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Question 8: Identify what documents the Crown relies on to say that the unitholders constitute a group.
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Decision: As the Respondent has correctly pointed out, parties are not required to segregate documents for the benefit of the other party.”
On waiver of solicitor-client, he writes:
[42] … The Appellant also cited Justice Woods’ decision in Gerbro Inc. v. The Queen,[21] which summarizes the principles of implied waiver:
“…
10 The jurisprudence supports the following propositions relating to implied waiver of the privilege:
(a) waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. …;
(b) where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost. (S & K);
(c) in cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency, it must be entirely waived. (S & K);
(d) the privilege will [be] deemed to have been waived where the interests of fairness and consistency so dictate or when a communication between a solicitor and client is legitimately brought into issue in an action. …;
(e) the onus of establishing the waiver rests on the party asserting waiver of the privilege. (S & K at paragraph 10).
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[44] The above passages confirm that privilege can be waived by a party for a limited purpose. If the waiver results in unfairness or inconsistency, the Court can order production of related privileged information. However, the bar for setting aside privilege is high and disclosure should only be ordered when it is “vital or necessary”.
See Superior Plus Corp. v. The Queen, 2015 TCC 132 (Hogan) affirmed Canada v. Superior Plus Corp. 2015 FCA 241