Quelle est la procédure d'examen lorsque des documents potentiellement protégés sont en possession de l'autre partie ?

Dente et al. v Delta Plus Group et al., 2023 ONSC 3376 

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[36]      Solicitor-client privilege is fundamental to the proper functioning of our legal system. The privilege ensures that clients are represented effectively. Without the assurance of confidentiality, people cannot be expected to speak honestly and candidly with their lawyers, which compromises the quality of the legal advice they receive: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, at para. 20 and 34; Blank v. Canada (Department of Justice), 2006 SCC 39, at 330; R. v. McClure, 2001 SCC 14, at paras. 5, 35.

[37]      Solicitor-client privilege is almost absolute. It may be set aside only in very rare and unusual circumstances and should not be interfered with unless absolutely necessary: Alberta (Information and Privacy Commissioner), at paras. 20, 34; Blank, at 330; R. v. McClure, 2001 SCC 14, at paras. 5, 35.

[38]      When a lawyer is advised that privileged documents were produced inadvertently, the lawyer must promptly return the material uncopied and, if possible, unread. If there is any issue as to whether privilege is properly asserted, the receiving counsel must seal the documents and any notes made in respect of the documents, and seek further direction from the court: Chan v. Dynasty Executive Suites Ltd., 2006 CanLII 23950 (Ont. Gen. Div.), at para. 74.

[39]      The party seeking to assert privilege may have to bring a motion for the return of the documents. Copies of the documents in question should be filed with the court in a sealed envelope to be opened and reviewed by the judge hearing the motion: Calgary (Police Service) v. Alberta (Information and Privacy Commissioner), 2018 ABCA 114, 16 C.P.C. (8th) 265, at para. 3.

[40]      The party opposing such a motion should cease any review or analysis of the documents in dispute until after the motion is heard: Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 SCR 189, at para. 59.

[41]      In this case, the parties agreed on a protocol and engaged the services of a neutral counsel, Gordon McGuire, to review the potentially privileged documents. Mr. McGuire provided copies of the contested documents to the court under seal. The documents were divided into categories in the manner that Mr. McGuire has classified the documents during his review.