What documents are protected from disclosure in Ontario litigation?

In Ontario litigation, not all relevant documents must be produced to the other side. Two main forms of privilege protect certain communications from disclosure.

Solicitor-client privilege (also called legal professional privilege) protects confidential communications between a client and their lawyer made for the purpose of giving or receiving legal advice. This privilege belongs to the client, is nearly absolute, and survives the end of the legal matter. It covers emails, letters, notes of conversations, and other communications where legal advice is being sought or given. Documents exchanged between a client and their lawyer for this purpose are listed on the affidavit of documents but the other side cannot compel their production.

Litigation privilege is a related but distinct protection. It covers documents and communications created for the dominant purpose of anticipated or ongoing litigation — for example, expert reports commissioned by your lawyer, interview notes from witnesses your lawyer spoke to, and internal memoranda prepared in anticipation of trial. Unlike solicitor-client privilege, litigation privilege ends when the litigation is over.

Other recognized privileges include settlement privilege (protecting communications made with the intent to settle) and informant privilege. If you are listing documents as privileged, they must genuinely qualify — courts will review challenged privilege claims and can order production if privilege is not properly established.