Spousal Privilege (Civil Action)

Re Application by Immunity Applicant Witnesses at First Stage Hearing, 2018 ONSC 6301 (CanLII)

[16] In dealing with solicitor-client privilege, the Supreme Court described class privileges in R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paras. 26-28, as follows:

The law recognizes a number of communications as worthy of confidentiality. The protection of these communications serves a public interest and they are generally referred to as privileged. (at para. 26)

There are currently two recognized categories of privilege: relationships that are protected by a “class” privilege and relationships that are not protected by a class privilege but may still be protected on a “case-by-case” basis. See R. v. Gruenke, [1991] 2 S.C.R. 263, per Lamer C.J., at p. 286, for a description of “class privilege”. (at para. 27)

For a relationship to be protected by a class privilege, thereby warranting a prima facie presumption of inadmissibility, the relationship must fall within a traditionally protected class. Solicitor-client privilege, because of its unique position in our legal fabric, is the most notable example of a class privilege. Other examples of class privileges are spousal privilege…and informer privilege (which is a subset of public interest immunity). (at para. 28)

[17] The privilege attaches immediately when the confidential information is provided. If it does not attach at the beginning of the process, the protection it provides would be illusory and could be lost – a result that would be absurd: Descoteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at para. 57 (dealing with solicitor-client privilege).

MacDonald, Re, 2002 CanLII 11321 (ON SC)

[19] On an Appeal such as this, I am entitled to accept and consider all evidence relevant to the claim. See: Eskasoni Fishing Ltd. (Re), [2000] N.S.J. No. 122 (N.S.S.C.). The Appellant's claim as to spousal privilege, regarding questions put to her on discovery has been waived by her affidavit as well as putting such issues into question through the filing of her Claim.

Adesa Corp. v. Bob Dickenson Auction Services Ltd., 2004 CanLII 45491 (ON SC)

[56] I am satisfied that there was an expectation of confidentiality in the Arbitration. The arbitration relationship generally benefits greatly from the element of confidentiality. The confidentiality of arbitration proceedings should be fostered to maintain the integrity of the arbitration process. I do not regard confidentiality as essential to the arbitration process. In my view, "sedulously" is perhaps a somewhat strong adverb for these circumstances. In balancing the interests served by confidentiality against the interests served in determining the truth and disposing correctly of the litigation, I do not think the confidentiality of arbitration proceedings should be elevated to the status of a privilege such as solicitor-client or spousal privilege or, on occasion, doctor-patient or spiritual adviser-penitent. I am not persuaded that the confidentiality of the arbitration process, including the need to encourage the truth of the evidence therein, is so important as to outweigh the need in this cou rt for justice if that requires the disclosure. The principle to be protected by such a privilege does not go to the heart of our adversarial system of justice or to Canadian Charter of Rights and Freedoms or other societal values. The recognized privileges are based on the need for frank disclosure of potentially prejudicial information for the purpose of obtaining proper advice or the need to preserve a socially important relationship. Even these privileges are limited in scope and subject to exception where the party entitled to the privilege puts the advice or the contents of the disclosure in issue or where other paramount considerations based on justice prevail. [page799]