Walden v. Social Development Canada

Walden v. Social Development Canada

The Tribunal has jurisdiction to inspect the expert's documents in camera to determine whether litigation privilege has been waived; litigation privilege is not automatically waived simply because an expert is called to testify or a report is tendered, and disclosure should be ordered only for documents that go to the substance of the opinion or the credibility of the witness after balancing disclosure and privilege.

Citation
2008 CHRT 35
Parties
Complainants: Ruth Walden et al.; Commission: Canadian Human Rights Commission; Respondent: Social Development Canada; Respondent: Treasury Board Canada; Respondent: Public Service Human Resources Management Agency Canada
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
8 August 2008
Procedural Posture
Canadian Human Rights Tribunal Human Rights Complaint (remedy Hearing) / Ruling on Motion Concerning Production of Expert's Documents and Claim of Litigation Privilege
Outcome
Tribunal declined to order automatic production of the expert's file; directed that the Respondents provide the asserted-privilege documents to the Tribunal for in camera inspection to determine whether privilege has been waived and which documents, if any, must be disclosed.
Legal Topics
Litigation Privilege, Solicitor Client Privilege, Expert Witness Disclosure, Waiver of Privilege, Jurisdiction to Inspect Documents
Source Language
English
Administrative Law Evidence Human Rights Civil Procedure Privilege Litigation Privilege Solicitor Client Privilege Expert Witness Disclosure +2 more

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Parties

Ruth Walden et al.

Complainants

Canadian Human Rights Commission

Commission

Social Development Canada

Respondent

Treasury Board Canada

Respondent

Public Service Human Resources Management Agency Canada

Respondent

Procedural Posture

Canadian Human Rights Tribunal Human Rights Complaint (remedy Hearing) / Ruling on Motion Concerning Production of Expert's Documents and Claim of Litigation Privilege

Legal Issues

  1. 1 Whether the Tribunal has jurisdiction to inspect documents over which litigation privilege is claimed
  2. 2 Whether litigation privilege is automatically waived when an expert witness is called to testify or when an expert report is tendered
  3. 3 What scope of documents in an expert's file must be produced if privilege is found to be waived

Ratio Decidendi

The Tribunal has jurisdiction to inspect the expert's documents in camera to determine whether litigation privilege has been waived; litigation privilege is not automatically waived simply because an expert is called to testify or a report is tendered, and disclosure should be ordered only for documents that go to the substance of the opinion or the credibility of the witness after balancing disclosure and privilege.

Court Disposition

Tribunal declined to order automatic production of the expert's file; directed that the Respondents provide the asserted-privilege documents to the Tribunal for in camera inspection to determine whether privilege has been waived and which documents, if any, must be disclosed.

Orders

  • Respondents to provide copies of the documents over which litigation privilege is asserted to the Tribunal for in camera review.
  • No immediate disclosure to parties; the Tribunal will order production to parties only for documents it determines privilege has been waived for and that are relevant to the substance of the opinion or the credibility of the witness.