Brass v. Canada

Brass v. Canada

The Court held that documents falling within solicitor-client privilege are protected and must be returned notwithstanding inadvertent production because Canada did not intentionally waive privilege and implied waiver was not established; litigation and settlement privilege were not established for documents...

Source-derived case information.

Citation
2011 FC 1102
Parties
Plaintiffs: Chemawawin Cree Nation et al (Plaintiffs); Defendant: Her Majesty the Queen (Canada); Third Party: Government of Manitoba
Court
Federal Court
Jurisdiction
Canada
Judgment Date
30 September 2011
Procedural Posture
Civil Litigation Aboriginal Claims (federal Court) / Motions Concerning Discovery and Privilege (motion to Compel/return Documents)
Outcome
Plaintiffs' motions to compel further privileged documents dismissed; Defendant's motions to have solicitor-client privileged documents returned allowed in part.
Legal Topics
Solicitor Client Privilege, Litigation Privilege, Settlement Privilege, Waiver of Privilege, Inadvertent Disclosure, Joint/common Interest Doctrine, Fiduciary Duty, Discovery Obligations
Source Language
english
Evidence Civil Procedure Aboriginal Law Administrative Law Litigation Practice Solicitor Client Privilege Litigation Privilege Settlement Privilege +5 more

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Parties

Chemawawin Cree Nation et al (Plaintiffs)

Plaintiffs

Her Majesty the Queen (Canada)

Defendant

Government of Manitoba

Third Party

Procedural Posture

Civil Litigation Aboriginal Claims (federal Court) / Motions Concerning Discovery and Privilege (motion to Compel/return Documents)

Legal Issues

  1. 1 Whether the documents at issue are privileged (solicitor-client, litigation brief, settlement)
  2. 2 Whether privilege was waived (expressly, impliedly or by inadvertent production)
  3. 3 Whether a joint/common interest or trust relationship negates privilege

Ratio Decidendi

The Court held that documents falling within solicitor-client privilege are protected and must be returned notwithstanding inadvertent production because Canada did not intentionally waive privilege and implied waiver was not established; litigation and settlement privilege were not established for documents actually produced, so those need not be returned, and the plaintiffs' motions to compel further privileged production were dismissed.

Court Disposition

Plaintiffs' motions to compel further privileged documents dismissed; Defendant's motions to have solicitor-client privileged documents returned allowed in part.

Orders

  • Return all documents determined to be subject to solicitor-client privilege to Canada
  • Destroy any copies of inadvertently produced solicitor-client privileged documents in Plaintiffs' possession